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Full text of "Modern economic warfare (law and the naval participant)"

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NAVAL WAR COLLEGE 
NEWPORT, RHODE ISLAND 



INTERNATIONAL LAW STUDIES 

1963 



MODERN ECONOMIC WARFARE 
(LAW AND THE NAVAL PARTICIPANT) 

By 

Neill H. Alford, Jr. 



$ 



NAVPERS 15031 
Volume LVI 



UNITED STATES 

GOVERNMENT PRINTING OFFICE 

WASHINGTON : 1967 



For sale by the Superintendent of Documents, U.S. Government Printing Office 
Washington, D.C. 20402 - Price $2.25 



FOREWORD 

Since the Naval War College was founded in 1884, the study of 
International Law has been an important part of its curriculum. 
From 1894 to 1900, certain lectures given on International Law to- 
gether with the situations studied were compiled and printed, but 
with very limited distribution. Commencing in 1901, however, the 
first formal volume of the Naval War College's "Blue Book" series 
was published. 

This book represents the fifty-sixth volume in the series as num- 
bered for cataloging and reference purposes. The present volume is 
written by Professor Neill H. Alford, Jr. of the University of Vir- 
ginia School of Law, who occupied the Chair of International Law 
at the Naval War College during the 1961-1962 academic year. It is 
considered that Professor Alford's book presents an excellent, infor- 
mative, and comprehensive work in the field of economic warfare. 

The opinions expressed in this volume are those of the author and 
are not necessarily those of the United States Navy or the Naval War 
College. The fact of publication does not imply endorsement of con- 
tent but indicates merely that the subject treated is one which merits 
attention. 

John T. Hayward 

Vice Admiral, U.S. Navy 

President, Naval War College 



in 



PREFACE 

The manuscript for this book was commenced in the spring of 1962 
and substantially completed in the fall of 1964. Economic warfare 
and its political environment changes rapidly and parts of this book 
will certainly be obsolete before its publication. Strangely anachro- 
nistic references will be found to "Soviet" and "Sino-Soviet Blocs." 
These may have existed in 1962 but could hardly be said to exist 
today. The book was completed before the United States became 
heavily involved in Vietnam and reflects no substantial part of our 
experience there. The lengthy discussion of economic warfare with 
Cuba through sugar-market controls breaks off in 1962, although 
supervening events tend to bear out the writer's observations. Na- 
tional institutions for trade control have altered somewhat since the 
writer described them in Chapter II. All in all, a highly fluid area 
is difficult to write about, although the writer comforts himself with 
the hope that his basic analysis of economic warfare, the relation of 
this analysis to legal institutions, and the relation of both to naval 
decision making, may become increasingly relevant as relations be- 
tween the United States, the Soviet Union, and Communist China 
continue their process of change. 

Work on the book was commenced during the administration of 
Vice Admiral Bernard L. Austin, USN, as President of the Naval 
War College. Admiral Austin's intimate knowledge of naval decision 
making and interest in law proved stimulating to the writer during 
his year of Residence. The writer's thanks are also due to Vice 
Admiral Charles L. Melson, USN, and Vice Admiral John T. 
Hayward, USN, Presidents of the Naval War College, who have 
extended him its facilities and have shared infinite patience with his 
delays to which lawyers unfortunately are prone. 

During his tenure at the Naval War College the writer profited 
greatly from his opportunities to discuss and argue points of inter- 
national law of naval interest with Commander (now Captain) 
Charles R. Davis, USN, and is heavily indebted to a series of classes 
of officers at the Naval War College between 1962 and 1965 whose 
international legal problems are reflected in this book. 

The burden of preparing the manuscript for publication and of 



VI 

soliciting comments upon it has fallen upon Commander Henry S. 
Palau, USN, and Lieutenant Commander Joseph M. Battaglino, 
USN. It is sufficient to say that without their editorial help the book 
would never have been published. 

The materials in substantially the form presented here were also 
submitted in partial fulfillment of the requirements for an advanced 
degree in law at the Yale Law School. In this connection, Professor 
Myres S. McDougal and Dr. B. S. Murty of the Yale Law School 
read the original manuscript and made many helpful suggestions. 
Dean Hardy Cross Dillard of the University of Virginia Law School 
has done much to encourage the writer to press forward with his 
work on this book and to seek its publication. 

Two Elizabeth Alfords have been extremely patient with the writer 
as the book was in preparation and his gratitude to them is here 
acknowledged. 

Responsibility for what appears in the book rests entirely upon the 
writer. 

Neill H. Alford, Jr. 
University of Virginia 
The Law School 
Henry L. and Grace Doherty Charitable 

Foundation Professor of Law 



TABLE OF CONTENTS 

Page 

Foreword iii 

Preface v 

Introduction 1 

PART I 
LAW, STRATEGY AND NAVAL OFFICERS 

Chapter 

I THE ANATOMY OF LEGAL STRATEGY IN ECONOMIC WARFARE. 11 
A. Participants, Techniques and Conditions of Action in Economic 

Warfare 11 

1. Common Economic Warfare Techniques 14 

2. Protracted Harassment and Economic Sortie 16 

3. Economic Sortie and the Louisiana Purchase 16 

4. Principles of the Economic Sortie: Comparison with Elements of 

Military Strategy 19 

The Sense of "Entrapment" 19 

Target Analysis: The Power Elite 20 

Limitations Upon Impact of Economic Warfare 22 

Sustentive Range and Ambit of Arrest 24 

Flexibility in Target Selection 26 

Time-Space and Disclosure Factors in Economic Warfare 27 

Problem of Institutional Change in Economic Warfare 30 

5. Policy Advantages of Economic Sortie Techniques in Economic 

Warfare 33 

Economic Sortie as a Primary Policy Device 33 

Neofeudalism : Economic Reinforcement 34 

Difficulty in Mobilizing Joint Action 35 

National Legal Context 38 

International Legal Context 40 

Summary of Advantages of Economic Sortie as Primary Policy 

Device 42 

Economic Sortie as a Secondary Policy Device 43 

B. The Naval Decision Maker in Economic Warfare: Lawmaking Dur- 
ing Administration 47 

1. Butler's Law of Contraband 48 

2. Wilkes and The Trent 50 

3. Lawmaking by Butler and Wilkes Compared 56 

4. The Naval Officer and Legal Strategy in Economic Warfare 59 

The Administration of Economic Warfare Policies 61 

Stereotypes in Administrative Instructions 63 

vii 



Vlll 

TABLE OF CONTENTS— Continued 

Chapter Page 

Reasons for Concern About Future Community Characterizations 

of Economic Warfare 65 

What a Naval Officer Can Do About the Legal Problems in Eco- 
nomic Warfare 67 

The Persistent Problem of Persuasion 68 

Locating the Potential Decision Maker 68 

Relevance of the Policy Level of the Decision Maker to a Charac- 
terization of Economic Warfare 69 

Retrospective Aspects of Community Characterizations of Economic 

Warfare 71 

Perspectives About Law and Lawmaking 75 

II LEGAL STRATEGY IN DEFENSIVE ECONOMIC WARFARE (THE 

SUGAR ENCOUNTER) 83 

Introduction 83 

A. The Monolithic State Trader in Economic Warfare 84 

1. Competitive Advantages and Disadvantages of the Monolithic State 

Trader in Economic Warfare 84 

Soviet Trade Control Structure 86 

Soviet Bloc Economic Warfare Techniques 88 

2. The United States and the Free World : The Legal Response to 

Bloc Economic Warfare 92 

Export Control Act of 1949 92 

Trading With the Enemy Act of 1917 95 

Battle Act 96 

International Control Structure for Strategic Trade 97 

Coordination of Aid Program and Trade Controls 100 

Current Economic Warfare Posture 102 

B. Sugar Economies of Cuba and the United States: The Legal Milieu 

for Wealth Balance 103 

Sugar Act of 1948 103 

World Sugar Market 107 

C. Cuban-Communist Economic Aggression and the Response of the 

United States in 1959 and Early 1960 109 

Cuban Sugar Situation in 1959 and 1960 112 

A Possible Defensive Scheme for the United States Employing Eco- 
nomic Sortie Techniques 113 

D. Difficulties in Organizing the United States Defensive Position 114 

Lack of Economic Warfare Professionals 114 

Intelligence Problem 115 

International Legal Considerations 115 

Threat to American Assets 119 

Domestic Legal Problems 119 

Sequence of Events in 1959 and Early 1960 121 

Problem of Allocation of the Sugar Deficit 122 

E. The Soviet Bloc "Economic Sortie" and Termination of Unilateral 
Policy by the United States 124 

F. Macroseismic Effects of the Quota Manipulation 130 



IX 

TABLE OF CONTENTS— Continued 

Chapter Page 

G. The Defensive Phase of Economic Action Against Cuba: An Interim 

Judgment and Demonstrated Need 133 

PART II 

THE NAVAL PARTICIPANT IN ECONOMIC WARFARE 

III ECONOMIC IMPACT OF INTERNAL CONFLICT 135 

Introduction 135 

A. Naval Reconnaissance in Civil Disturbance 136 

Situation 1 136 

Map 137 

Discussion: Situation 1 138 

Tentative Factual Analysis 138 

Necessity for Information 139 

Establishing an Intelligence Source 139 

Control by a Territorial Sovereign Over Entry of Foreign Warships- 140 
United States Position Concerning Advance Consent to a Naval 

Reconnaissance 142 

Naval Armed Reconnaissance in Civil Disturbance as "Intervention"- 143 

Doctrine of "Intervention" — Preliminary Discussion — Background 145 

"Intervention" Defined by International Agreements 149 

Suggested Solution: Situation 1 154 

B. Port Closure During Insurgency 155 

Situation 2 155 

Discussion : Situation 2 156 

Blockade and Belligerent Recognition 156 

Facts Bearing Upon Belligerent Recognition 157 

Suggested U.S. Naval Policy Absent Belligerent Recognition 157 

Effect of Port Closure by De Jure Government 158 

Positions Concerning Port Closures Taken by States Other than 

United States 160 

Effect of Port Closure by Insurgents 162 

Suggested Solution: Situation 2 167 

C. Landing of Armed Forces to Protect Property During Civil Dis- 
turbances 169 

Situation 3 169 

Discussion: Situation 3 170 

Armed Action to Protect Persons and Property 170 

Intervention : Administratively Geared 173 

Anglo-French Action in Suez and United States Action in Lebanon 

Compared as Interim Stabilization 179 

Policies in Western Hemisphere Concerning Action to Protect Prop- 
erty During Civil Disturbances 185 

Suggested Solution : Situation 3 189 

D. Seizure of Property by De Jure Government 191 

Situation 4 191 

Discussion : Situation 4 192 



TABLE OF CONTENTS— Continued 

Chapter Page 

Types and Methods of Expropriation 192 

Angary 194 

International Agreements Concerning Expropriation 195 

Applying Principles of International Agreements as "International 

Custom" 202 

Application of Principles to Seizures by Nuevan Officials 207 

Suggested Solution: Situation 4 211 

IV ECONOMIC WARFARE A8 A PRIMARY POLICY DEVICE 215 

Introduction 215 

A. Planning the Economic Sortie: Considerations of Legal Strategy 216 

Situation 5 216 

Discussion: Situation 5 219 

1. Tentative Analysis of Facts and Possible Techniques 219 

a. Intelligence Barrier 219 

b. Selecting the Wealth Weapon 220 

c. Sustentive Range — Ambit of Arrest 221 

Marshall Mission to China: Sustentive Range of Economic 

Policy 222 

Peruvian Coup d'etat: Ambit of Arrest 230 

2. Choice of a Wealth Weapon to be Used Against Antioka 234 

a. Manipulation of Economic and Military Assistance 234 

Economic and Military Aid Programs 234 

Possible Uses of Economic and Military Aid Programs in Eco- 
nomic Warfare 238 

Inability to Direct Manipulations of Foreign Aid: Delayed Re- 
action 238 

Limited Ambit of Arrest and Sustentive Range in Foreign Aid 

Manipulation 240 

Limitations Imposed by Domestic Law 241 

Reciprocal Control in Foreign Aid 242 

Folk- Way Expectation of Aid : "Neofeudalism" 243 

3. Exploitation of Trade in Tin, Wheat, Textiles and Hard Goods 244 

Stockpiling Policy 246 

Dumping Tin in Antiokan Markets 252 

Manipulation of Trade in Wheat, Textiles and Hard Goods 256 

Suggested Solution: Situation 5 258 

B. Naval Interdiction of Supply Lines in Support of Diplomatic Action- 259 

Situation 6 259 

Discussion : Situation 6 266 

1. Law and Biological Warfare: Tentative Analysis of Facts 266 

2. Analysis of the Quarantine in Four Phases 269 

a. Cuban Quarantine: 

Phase 1 271 

Pacific Blockade 273 

b. Cuban Quarantine: 

Phase 2 279 

c. Cuban Quarantine : 

Phase 3 281 



XI 

TABLE OF CONTENTS — Continued 

Chapter Page 

d. Cuban Quarantine: 

Phase 4 283 

3. Selected Legal Analyses of the Quarantine: Application to the 

Threat of Biological Attack 284 

4. Law and the Draft Proclamation: Permissible and Impermissible 

Coercion 289 

a. Elements to be Considered in Reviewing Draft Proclamation 291 

Coordination in the Proclamation 292 

Guidance in the Proclamation 293 

Persuasion in the Proclamation 296 

b. Self-Defense and Collective Self-Defense 297 

Self-Defense and Collective Self-Defense Applied to Draft Procla- 
mation 301 

Article 51 of the United Nations Charter 304 

WHO and the Health Regulations 313 

Interim Action to Preserve the Status Quo 314 

V ECONOMIC WARFARE AS A SECONDARY POLICY DEVICE 317 

Introduction 317 

A. Sources of Legal Doctrine in Economic Warfare and the Problem 

of Neutrality 318 

General Situation 7 318 

Discussion: General Situation 7 320 

1. Sources of Doctrine: Economic Warfare at Sea as Secondary 

Policy Device 320 

2. Neutrality and Economic Warfare at Sea 325 

Pattern of Interaction Between Participants and Nonparticipants : 

General Conditions for Action 327 

Conflict Situations 329 

Claims to Participation and Nonparticipation 333 

B. Naval Blockade 340 

Special Situation 7 A 340 

Discussion: Special Situation 7 A 340 

Major Legal Features of Naval Blockade 344 

Blockade Must be Declared and Established by Competent Authority- 345 

Character of the Declaration : Notification to Nonparticipants 347 

Blockade Must be Effective to be Binding 351 

The Blockade Must be Applied Impartially to All Vessels and Air- 
craft — 359 

The Blockade Must Not Bar Access to Neutral Ports or Air Termini. 361 

Suggested Solution: Special Situation 7 A 362 

C. Contraband 363 

Special Situation 7 B 363 

Discussion: Special Situation 7 B 364 

Contraband Principles in Declaration of London 364 

World Wars I and II and the Declaration of London: Contraband 

Features 368 

Navicerting 370 

Expansion of Contraband Lists 374 



Xll 

TABLE OF CONTENTS— Continued 

Chapter Page 

Food as Contraband 377 

Medical and Hospital Supplies 380 

The Need for a Contraband List 381 

Suggested Solution : Special Situation 7 B 382 

D. Ultimate Destination (Continuous Voyage) — Blockade and Contra- 
band Applications: Consequences of Carriage of Contraband and 

Breach of Blockade 383 

Special Situation 7 C 383 

Discussion : Special Situation 7 C 384 

Ultimate Destination (Continuous Voyage) : Background 384 

Modern Applications : Ultimate Destination-Continuous Voyage 388 

Burden of Proof 389 

"Intention" in Enemy Destination 391 

Evidence on the Issue of Enemy Destination 393 

Differences in Weight of Evidence Required for Seizure and Con- 
demnation : The Economic Warfare Importance of Delay 398 

Consequences of Carriage of Contraband and Breach of Blockade 402 

Suggested Solution: Special Situation 7 C 404 

E. Maritime Enemy Property Control 404 

Special Situation 7 D 404 

Discussion : Special Situation 7 D 405 

Character of the Ship 405 

Character of the Cargo 408 

Suggested Solution: Special Situation 7 D 415 

Appendix A 416 

Index 417 



INTRODUCTION 

Modern economic warfare is "material resource" warfare. Modern 
economic warfare involves intentional disturbances of the flow of 
material resources among people and of the processes by which these 
resources are used to produce values. Under the rubric "modern eco- 
nomic warfare" are embraced such apparently disparate practices as 
the preemption of scientific knowledge and skill to deny them to an 
adversary and interferences with the transport of materials, such as 
nuclear and biological weapons, not regarded as wealth in a conven- 
tional sense. Traditionally, economic warfare has been associated 
with manipulations of wealth to affect power. But these manipula- 
tions are treated in this book as disturbances of processes by which 
resources are used to produce values through the medium of wealth. 

Modern economic warfare is similar in its major features to eco- 
nomic warfare waged in the past. Differences stem from the fact 
that modern economic warfare is waged during a period of general 
military stalemate. This military stalemate is of uncertain duration. 
It is subject to intentional or inadvertent disturbances, being based 
upon a balance between major adversaries in arsenals of ultra- 
decisive weapons of a nuclear, biological and chemical nature. 

Thus, when modern economic warfare is waged during insurgen- 
cies, counterinsurgencies and "limited" wars, coercive economic prac- 
tices may escalate into violent power exchanges. When this escalation 
is not desired by the policy makers concerned, there is a premium 
upon selecting economic warfare techniques which reduce the risk 
of escalation to a minimum. 

The writer seeks to demonstrate in Part I of this book that eco- 
nomic warfare by "protracted harassment," the usual posture of the 
United States and other major powers when employing economic 
coercion, has been rendered marginally effective, prohibitively costly 
and extremely hazardous by political and technical changes. He 
recommends, as an alternative to economic warfare by "protracted 
harassment," preference for economic warfare by "economic sortie." 
Economic warfare by "economic sortie" has been waged frequently 
and effectively in the past. It is adaptable to current "military stale- 
mate" conditions whether or not employed concomitantly to limited 
military hostilities. 

In Part II of this book, principles developed and discussed in 



Part I are applied in a series of hypothetical cases in which naval 
officers participate in decision making, often simply in an advisory 
capacity, at various policy levels. The convenience of the casual 
reader has been sacrificed to realism by developing the hypotheticals 
in factual sequence. Consequently, a reader referring to a single 
hypothetical will perhaps find useful a review of the preceding fact 
situation. 

Two islands (logical targets for economic warfare by sea) figure 
in the hypotheticals. These are Nueva and Antioka, adjacent and 
fictitious countries, placed in the Western Hemisphere only to involve 
in the discussions the Organization of American States. A map ap- 
pears at the beginning of Part II and as Appendix A. 

The situations commence with naval activity relating to a civil 
disturbance in Neuva in which property of United States citizens is 
threatened with loss. The situations then progress through a civil 
war in Nueva which results in overthrow of its government by the 
insurgents ; strained relations between the new government in Nueva 
and Antioka; development of Nueva as a Scythian satellite, Scythia, 
also a fictitious state, appearing as a major political adversary of the 
United States; overthrow of the Antiokan government by Nueva 
with Scythian aid; and end with a series of hypotheticals in which 
the United States establishes a naval blockade of Antioka and Nueva 
and later participates in peace enforcement action against Antioka 
and Nueva by the Organization of American States under the Rio 
Pact. 

The purpose of the book is to alert naval officers to the bearing of 
law upon economic warfare confrontations and to demonstrate to 
them how law relates to the discharge of their economic warfare 
duties. No economic warfare primer is attempted, although in con- 
centrating upon decision making at low policy levels and in relating 
law to this process, the writer found useful a delineation of major 
principles of strategy and tactics in economic warfare. Other com- 
mentators, stressing either the use of economic warfare techniques to 
support military operations or the impact of economic warfare upon 
national economies, have not attempted this emphasis. 

In hammering out his own provisional and crude framework of 
strategy and tactics in economic warfare, the writer is aware he has 
trampled upon niceties of economic theory with Gothic abandon. 
Perhaps those better equipped for the task will recognize the need 
for principles of economic warfare to guide executive officers at all 
levels of government and will provide a more workable and satis- 
factory analysis. 

The use of naval power in economic warfare is familiar. Admiral 



Mahan, in his classic The Influence of Sea Power Upon History * * * * 
denned with infinite care the relationships between naval power and 
the distribution and use of material resources. Sharing with other 
19th century thinkers the conviction that principles of growth, useful 
to explain the past and guide predictions of the future, could be dis- 
covered by a sophisticated and diligent analysis of value processes, 
Mahan related naval power to principles of political change discover- 
able in processes for producing and using material resources. 

Whether "wealth" principles provide complete explanations of 
events in the past or sound guidelines for forecasts of the future are 
matters now hotly disputed. But, in addition to securing deserved 
recognition of the influence of navies in history, quite apart from 
their sporadic use in war to destroy the people and commerce of an 
enemy, Mahan articulated an enduring relationship between navies 
and the distribution and use of material resources. This relationship 
deserves attention when the United States Navy is considered as a 
force to execute a national policy of "graduated response to coercion." 

However, Mahan's advocacy of the need for a revival of United 
States naval strength, which had fallen into desuetude in the late 
19th century, led him to define the mission of a naval establishment 
primarily as one of trade protection. This was a modest demand, 
ably attuned to the trend of American thought and the changing 
political position of the United States. 

Many Americans of Mahan's day questioned the necessity even for 
the feeble fleet then flying our flag. They shared, nevertheless, a 
pervasive belief that a major purpose of government was positive, 
but benign and unobtrusive, protection of private activity in pro- 
ducing, transporting and using wealth. 

Sensitive to this opinion, and foreseeing a stimulus to American 
interest in sea trade following completion of the then contemplated 
Isthmian canal, Mahan accurately and effectively projected an image 
of the Navy as the indispensable protector of sea commerce. His argu- 
ments supported claims by the Navy to an increasing share of the 
national budget during the lean fiscal years preceding the Spanish- 
American War and during the period of almost equal general mili- 
tary impoverishment preceding World War I. Educated by Mahan 
to the intimate relationship between a powerful Navy and the peace- 
ful maintenance and expansion of sea commerce, the American tax- 
payer bore his increasing financial burden with little complaint. 

Influenced also by Mahan's definition of the purpose of a United 
States naval establishment, the Navy accepted the strategic and 
tactical concept of "organic" operational control advocated by Mahan 

1 Mahan, The Influence of Sea Power Upon History, 1660-1783 (1890). 



and a number of his contemporaries. "Organic" administrative con- 
trol had prevailed in the Navy for many years. But many officers, 
particularly senior officers of Civil War vintage, adhered staunchly 
to the concept that the normal and proper employment of naval 
power was by the dispatch of individual cruisers for raids upon 
enemy commerce. 2 Mahan and others, who viewed the mission of the 
Navy principally as one of protecting sea carriers to and from 
American ports, saw centralized operational control as an essential 
institution to accomplish this end. 

By the time of the Spanish- American War the "Mahan concept" 
was beginning to prevail. The flamboyant individualism of inde- 
pendent naval operators, such as Cushing, was on the wane. Efficient 
electronic communications sealed the victory of "organic" operational 
control. 

Reasonably well-financed, in part at least as an outgrowth of 
Mahan's effective public appeal, the Navy kept abreast of improve- 
ments in naval hardware. Coupled with this was adherence to a new 
tactical and strategic concept which proved effectively geared to the 
requirements of major naval warfare in the early 20th century. Dur- 
ing World War I, the protection of commerce, as Mahan had fore- 
seen, was the dominant mission of the United States Navy; and 
although World War II imposed diverse requirements upon the 
Navy, commerce protection again demanded a significant part of its 
effort. 

The nuclear age has reinforced the importance of "organic" opera- 
tional control. But features of existing and potential military con- 
flict in the nuclear age have revived a shadow of the old decentralized 
decision making familiar in the early period of Mahan's naval career. 
The more dramatic aspects of this current individualization of policy 
making inhere in such current naval functions as the use of naval 
units to strike, by means of aircraft or missiles, deep within conti- 
nental land masses and the provision of second-strike capabilities by 
units at sea. Yet changes of greater subtlety also are occurring. 

In the past, naval officers have figured in economic warfare most 
prominently while maintaining blockades, enforcing contraband lists 
and preventing unneutral service during general hostilities. During 
World Wars I and II, as will be pointed out in further detail in 
Chapter V, there was a shift in the responsibility for major economic 
warfare decision making from the sea officer to administrative officers 
ashore. The administration of economic warfare was centralized and 
an effort was made to apply administrative controls to contraband at 



2 See Mahan, From Sail to Steam, 271 (1907). 



source — or before the contraband was shipped by sea. Under these 
circumstances, the "policy- voices" of naval officers were muted. 

It had always been necessary for naval officers to have some under- 
standing of economic warfare other than that immediately involved 
in their sea duties. This requirement exists today. All economic war- 
fare tends to evolve towards defensive or offensive postures by ad- 
versaries requiring an interdiction of sea or air transport. The naval 
administrative (NAVAD) blockades of World Wars I and II were 
founded in part upon economic warfare postures of the contestants 
antedating military hostilities. While the diverse backgrounds of 
officers on blockade duty during the two great wars did not provide 
an officer corps well versed in general economic warfare techniques, 
the better the grasp by an officer of the administrative framework 
for economic warfare, the more efficiently he performed his duties. 
All economic warfare practices tend to interrelate — and effective or 
ineffective action in one zone of economic warfare is likely to be 
reflected in others. 

Yet modern economic warfare, waged during insurgencies, counter- 
insurgencies and limited wars, is conducted without the major ad- 
ministrative structures which have been hastily assembled during the 
two great world conflicts and as hastily demolished at the end of 
them. Although the United States is prepared because of its extensive 
resources to wage economic warfare, it is deficient in economic war- 
fare organization and theory. Our greatest neglect in this area has 
been our failure to recognize economic warfare as a coercive practice 
pattern deserving the attention of a permanent corps of professionals. 

Absent such a corps of economic warfare professionals, the burden 
to grasp economic warfare theory and develop and use economic 
warfare techniques tends to rest heavily upon military officers — and 
particularly upon those in the naval service because of the intimate 
relation between naval poAver and the transport and use of material 
resources so ably spelled out by Mahan. In none of the other military 
services does the spectrum of decision making responsibility in eco- 
nomic warfare range from the situation in which tight central con- 
trol leaves little discretion to the commander to the situation in which 
this commander is likely to find an economic warfare decision of the 
greatest national importance resting squarely upon his shoulders — 
nor in the other military services do these situations tend to shift 
with equal rapidity. 

Furthermore, the tasks required of naval officers have become re- 
markably diverse in the nuclear age. In the time of Mahan, it was 
sufficient for a naval officer in a senior command position to be a good 
seaman and able fighter. Today he may have to serve as a diplomat or 



6 

political advisor or may perform sundry other tasks having political 
overtones required by the exigencies of a situation. He must under- 
stand the entire power structure in which he operates and cannot 
limit his study or inquiry simply to the details of naval administra- 
tion and organization. 

It is this new trend back to a form of decentralized decision mak- 
ing compatible with "organic" operational control, coupled with the 
increasingly diverse responsibilities which a naval officer is expected 
to discharge, which justifies an emphasis upon "legal strategy" in 
economic warfare at the comparatively low policy level here con- 
sidered. In economic warfare which involves naval sea and air power 
only provisionally or peripherally, naval officers, although perhaps 
filling roles less conspicuous than those of civilian officials, may par- 
ticipate in economic warfare policy making as advisors even when 
not participating as commanders. 

When one examines the minutiae of an economic warfare trans- 
action — and a major effort to do this is made in this book — it is 
apparent that most of the critical decisions — those from which there 
is no turning back — are made at the level of application (or execu- 
tion) of economic warfare policy. It is at this point that a naval 
officer is most likely to participate as an advisor or commander. As 
administrators, these officers also engage in administrative or "effec- 
tive" lawmaking as they apply their orders to the facts. 

The major responsibility of any military officer, including those in 
the Navy, is to understand and execute legal orders given them by 
their military or civilian commanders. A military officer has no 
license to formulate his own "law" or to engage in legal experiment. 
But in discharging his professional responsibilities, the officer be- 
comes, consciously or not, both a contributor of new legal institutions 
and an assayer of existing legal institutions. As an "administrative 
lawmaker," a naval officer may contribute concretely to developing 
legal doctrines and techniques which take current facts and postu- 
lated future facts realistically into account. He may also induce 
authoritative decision makers to reject legal doctrine that has be- 
come irrelevant to contemporary fact. The process by which these 
developments occur is described in greater detail in Chapter I of this 
book. The process is as difficult to escape as it is to describe ; although 
to suggest a naval officer may, make new law, rather than simply 
administer laws passed or proclaimed by a constitutional body or 
civilian officer, appears superficially to invite unwarranted breaches 
of the mercurially sensitive lines defining civil-military relationships. 

An understanding by naval officers of the distinctions between 
formal and effective lawmaking functions may sharpen their appre- 



elation of the importance of impingements of "law" upon economic 
warfare missions. Such an understanding may also dispel any false 
image these officers may entertain of "law" as an arbitrary or unrea- 
sonable restriction upon imaginative measures in economic warfare. 

While a naval officer's participation in "legal strategy" in economic 
warfare usually occurs at the administrative or operational level as a 
commander or staff officer, he may participate in formulating eco- 
nomic warfare policy, including its legal elements, on a formal basis 
and at a high executive, legislative or judicial echelon. Rarely, he 
will serve as a member of a court or commission dealing with eco- 
nomic warfare policy. Perhaps he will be a delegate to an interna- 
tional convention dealing with legal issues in economic warfare from 
the perspective of the general community. Typically, however, his 
participation in economic warfare policy making on a formal level 
will be advisory only. 

Thus, he may have special knowledge concerning some confronta- 
tion in which an application of economic warfare techniques is con- 
sidered. His advice may then be sought at high executive levels. He 
may testify before a Congressional committee which seeks to define 
an economic warfare problem of naval interest and devise legislation 
to deal with it. He may offer testimony before courts. In one rela- 
tively recent case before the World Court, testimony by naval officers 
(none of them from the United States) had an important bearing 
upon the decision. 3 

In his participation in policy making at the various informal and 
formal policy levels mentioned, a naval officer deals with both na- 
tional and international law. The major obstacle to his effective use 
of "legal strategy" is his tendency to regard national and interna- 
tional law simply as networks of rules to regulate conduct. 

For this reason, Chapter I of this book offers a brief survey of the 
participants in economic warfare, their objectives and techniques and 
the conditions under which these techniques are employed. Chapter 
II then bears upon claims and counterclaims opposed in economic 
warfare and processes by which community decisions concerning 
these claims and counterclaims are formulated. 

In Chapter II the confrontation between the United States and 
Cuba concerning elimination of the Cuban sugar quota in the United 
States closed market is used as a framework for discussion. Although 
conflict concerning a sugar quota seems at first glance to have little 



3 The Corfu Channel Case, mentioned at page 371 infra. For a roster of the 
witnesses (British, French, Dutch, Swedish, Norwegian, Bulgarian and Yugo- 
slav) and a summary of their testimony, see Alford, "Fact Finding by the 
World Court," 4 Villanova Law Review, 37, 69-74 (1958). 



8 

relevance to participation by a naval officer in economic warfare, it 
facilitates an examination of Communist economic warfare tech- 
niques with which naval officers are vitally concerned and an exami- 
nation also of United States law bearing principally upon "defen- 
sive" economic warfare. The "sugar encounter" demonstrates how 
coercive economic techniques tend to escalate towards situations re- 
quiring naval action and displays the complexity of decision making 
in economic warfare waged by the United States. 

There is no attempt in Part I or in the problems developed in 
Part II to do more than examine "legal strategy" in economic war- 
fare from the decision-making perspective of a participating United 
States naval officer. Thus, the concentration is upon "claim processes" : 
Who are the claimants and counterclaimants in economic coercion? 
What types of claims are asserted? In what conflict situations are 
they asserted? What strategies are emphasized? And what are the 
outcomes? Since legal strategy in economic warfare is emphasized, 
there is also concentration upon the processes of "decision" con- 
cerning these claims ; but no effort is made to view the instrument of 
economic coercion in multiperspective as part of a world social and 
power process. 

Policy statements by decision makers in the general community 
concerning economic warfare are quite sparse. It has been difficult in 
the past to generate issues in economic warfare which could be pre- 
sented to an organ of the general community for decision. Moreover, 
the economic practices of the United States (coercive and persuasive) 
apparently thus far have been compatible with the demands of the 
general community ; although this will not necessarily continue to be 
the case. If divergences occur, and as general community policy is 
gradually formulated in this area, analyses of economic warfare from 
a general community perspective, clarifications of general community 
policy and recommendations for alternative policies and procedures 
will become of increasing value. The groundwork in this book may 
facilitate a more ambitious analysis. 

A multiperspective study, for example, will require the "economic 
instrument of coercion" to be located within the pattern of com- 
munity coercive processes. The participants, their immediate and ulti- 
mate objectives, the conflict situations, the strategies of the partici- 
pants and the effects of these strategies all should be accurately 
defined. The claim processes, as considered in this book, should then 
be examined, with emphasis, however, not simply upon the role in 
this process of a single type of executive officer, but upon the full 
spectrum of national claims and counterclaims and claims and coun- 
terclaims by participants other than states. The process of decision 



9 

likewise should be examined in detail from the perspective of the 
territorially organized communities and also from the perspectives 
of officials of international organizations and tribunals: their objec- 
tives; decisional situations; strategies; and the outcomes of their 
decisions being considered. An analysis in detail, such as this, might 
then permit a rational clarification of policy for the general com- 
munity with alternative policies and procedures suggested in the 
light of current trends and conditions. 



PART I 
LAW, STRATEGY AND NAVAL OFFICERS 

CHAPTER I 

THE ANATOMY OF LEGAL STRATEGY 
IN ECONOMIC WARFARE 

A. PARTICIPANTS, TECHNIQUES AND CONDITIONS OF 
ACTION IN ECONOMIC WARFARE 

In the context of naval interest here emphasized, "economic war- 
fare" describes an intense disturbance either of the flow of material 
resources among people or the use of these material resources by 
them. The disturbance is coercively oriented and state directed 
against an adversary to diminish its power. 

Economic warfare is distinguished from "military warfare," men- 
tioned frequently in this book. Military warfare describes an intense 
disturbance of human resources, usually by death, injury or imprison- 
ment. The two forms of warfare are not mutually exclusive. The 
preemption of human resources — such as forced labor — or the disor- 
ganization of labor may be described as "economic" warfare or "mili- 
tary" warfare in some contexts. Likewise, strategic bombing from 
aircraft or by ballistic missiles, intended to destroy both material 
and human resources, may be viewed as economic or military warfare 
depending upon the emphasis in context. 

A state is a territorially organized and based community. Naval 
officers usually serve as state representatives. Economic warfare by 
international organizations tends to be planned and executed through 
state institutions. 

"The flow of material resources" includes the discovery and circu- 
lation of these among the people of any communities involved in an 
economic warfare confrontation. "Circulation" includes the transport 
of resources. "Use" includes the processes by which values are pro- 
duced from material resources. In most instances, these processes 
involve initial production of "wealth" from material resources, with 
wealth then being used to attain other values. The intense disturb- 
ances resulting from economic warfare thus usually are associated 
with "wealth" and the phrase "wealth flow and use" will be employed 

11 



12 

in this book to refer to the processes — wealth and other — which are 
"disturbed" in "economic warfare." However, the writer does not 
intend by using these terms to exclude from the ambit of "economic 
warfare" disturbances such as interferences with the transportation 
of weapons and military equipment, materials not usually viewed as 
"wealth" in a conventional sense. 

Frequently wealth flow and use is disturbed in conflict dominated 
by persuasive elements. Conflict of this nature is not here considered. 
"Economic warfare" is used in this book to describe only those situa- 
tions in which wealth disturbances are both intense and coercively 
oriented. 

Naval officers are demonstrably adept in persuasive techniques. The 
naval service has long been familiar with "diplomacy of the quarter- 
deck." 1 But naval officers are primarily specialists in violence. They 
are likely to participate significantly as commanders or advisors in 
economic warfare when wealth disturbances have a coercive edge. 
Persuasion has its place in economic warfare; but persuasion figures 
largely in the area of "legal strategy" incident to the execution of 
economic warfare policies. 

"Economic warfare" includes direction against an adversary. The 
definition thus excludes inadvertent wealth disturbances. However, 
inadvertent collateral wealth disturbances often occur when wealth 
disturbances are directed; and the probable effects of these collateral 
disturbances should be considered when economic warfare is planned 
and executed. 

Economic warfare has been described by other writers in various 
ways. All commentators upon the topic agree that economic warfare 
involves the manipulation of material resources to affect the power 
of an adversary : — The wealth of the adversary may be decreased. 
His use of wealth may be impeded. His wealth may be radically 
increased to induce confusion. The wealth position of the value 
manipulator or his ally may be enhanced. 

But differences arise in the conflict situations and particular prac- 
tices emphasized by these commentators. There are also variations 
in the clarity with which these commentators view economic warfare 
as "objective" or "goal" directed. 

Some describe any coercive use of values by international organi- 
zations, states, corporations or natural persons as economic warfare 
if disturbances in the distribution of "wealth" and consequently of 
"power" are significant. Others emphasize the conflict situation. 
Traditionalists — those who view economic warfare as ending when 



1 See Paullin, Diplomatic Negotiations of American Naval Officers, 1778-1883 
(1912), passim. 



13 

military hostilities end — and also those writers who concentrate 
upon applications of physical violence — tend to regard economic 
warfare simply as confined to techniques supporting military opera- 
tions against an enemy. 2 

Interest has been exhibited in recent years in coercive wealth prac- 
tices intended to be used as substitutes for military violence. 3 An 
expectation by these writers is expressed or implied, perhaps unjusti- 
fiably, that such uses of coercive wealth practices may avoid or mini- 
mize the hazards of general war stemming from localized armed 
conflict. 

If one browses extensively in materials relevant to coercive wealth 
practices, any wealth practice having detrimental effect upon some- 
one else can be found described by those sympathetic to the victim 
as "economic warfare," while those sympathetic to the wealth 
manipulator, euphemistically, will describe the same practice as an 
"economic measure/' 

Each of these commentators describes accurately certain segments 
of economic warfare. But none tend to deal with economic warfare, 
often because of the special context emphasized, in a broad policy 
perspective. 

These differences in emphasis suggest a dual relation of economic 
warfare to other techniques designed to attain general state policy 
objectives. Economic warfare may be waged in a primary or in a 
secondary policy role. 

If a strategist relies upon the projected effects of economic warfare 
to secure a desired response from his adversary, he conducts economic 



2 Medlicott, The Economic Blockade (Vol. I, 1952, Vol. II, 1959) is the most 
detailed and valuable study with this emphasis. Volume I contains a survey of 
prewar planning. The emphasis is upon British economic warfare operations 
but much American material is included. See also, Gordon and Dangerfield, 
The Hidden Weapon, The Story of Economic Warfare (1947) ; Basch, The New 
Economic Warfare (1941) ; Jack, Studies in Economic Warfare (1940) ; Siney, 
The Allied Blockade of Germany, 1914-1916 (1957). Good short accounts may 
be found in McDougal and Feliciano, Law and Minimum World Public Order, 
509-519 (1961) and Stone, Legal Controls of International Conflict, 457-544 (2d 
Ed., 1959). 

3 See Welton, The Third World War: Trade and Industry — The New Battle- 
ground (1959) ; Wu, Economic Warfare (1952). Liska, The New Statecraft 
(1960) deals with economic pressure through foreign aid. Williams, Economic 
Intelligence and Economic Warfare (Vol. XV, Industrial College of the Armed 
Forces, 1952) emphasizes the importance of adequate intelligence in economic 
warfare. Useful fragmentary treatments are Haas and Whiting, Dynamics of 
International Relations, 233-242 (1956) ; Lincoln, Economics of National Se- 
curity, 521-544 (2d Ed., 1954) ; McDougal and Feliciano, Law and Minimum 
World Public Order, 30-32 (1961) ; Strausz-Hupe & Possony, International 
Relations, 532-561 (1950). 



14 

warfare as a primary policy device. If a strategist relies instead upon 
the effects of other coercive or persuasive devices upon his adversary, 
waging economic warfare simply to support the device upon which 
he principally relies, he conducts economic warfare as a secondary 
policy device. Economic warfare thus functions in a secondary policy 
role when waged to diminish the resources of an enemy subjected to 
military violence as the principal sanction. 

In the total policy spectrum of a state at any given time economic 
warfare may be waged both as a primary and as a secondary policy 
device. While the tendency is to employ economic warfare in a 
secondary policy role during military hostilities, even in this context 
examples of economic warfare employed in a primary policy role 
usually can be discovered. 

In some situations, as in an environment characterized by inter- 
mittent resorts to military violence, it may be difficult to determine 
the precise policy role of economic warfare. The degree of reliance 
upon economic warfare shifts frequently depending upon the tech- 
niques a state prefers to attain its most important values. However, 
certain typical techniques have been associated with economic war- 
fare in primary and secondary policy roles and identification of these 
may assist in determining the degree of policy primacy attributed by 
state policy makers to economic warfare in a particular context. 

1. Common Economic Warfare Techniques 

When waging economic warfare as a primary policy device, strate- 
gists tend to use competitive techniques developed in private com- 
merce. Private commercial techniques are adopted and employed by 
state institutions. Alternative^, private commercial operations are 
diverted to state ends. 

An adversary may be harassed by withdrawals of gold or other 
precious metals. These withdrawals are among the oldest economic 
warfare techniques. England, France and Holland withdrew gold 
from Spain in the 17th century by contraband trade with Spanish 
colonies. France hatched a plan in 1796 to coerce England by with- 
drawing guineas from circulation. 

States have counterfeited currency of an adversary to reduce the 
purchasing power of valid issues. Louis Kossuth, exiled in England, 
had Hungarian florins printed by an English lithographer. Although 
not counterfeits of florins issued by the de facto Hungarian govern- 
ment, the Kossuth florins were intended to compete with this valid 
currency and reduce its purchasing power. 4 The Soviet Union ob- 



4 See The Emperor of Austria v. Day and Kossuth, 3 DeGex, F. & J., 217 
(1861). 



15 

tained American plates used to print German occupation marks. 
After World War II, the Western occupation zones were flooded with 
excessive Soviet issues to obtain dollars from speculators, produce 
inflation and impede reconstruction. 

Tariffs have been favored economic weapons. Used defensively, a 
tariff may be placed upon the goods of an adversary to force a higher 
price in the market of the strategist. A tariff may also be used 
offensively to destroy industries of an adversary. This was attempted 
by Louis XIV in his tariff war against Holland in 1667. 

Barriers may be raised to imports or exports or to both. Austria 
dislocated the Serbian economy in 1905 by a boycott on Serbian pigs 
— a principal Serbian export. Embargoes frequently have been placed 
upon export of goods from the embargoing state. The United States, 
for example, imposed an embargo in 1807 upon American and foreign 
shipping from United States ports. This was designed to deny to 
France and England access to American resources in order to induce 
respect by both of United States claims to freedom in sea commerce. 

Trade cartel manipulations have been favored devices for economic 
harassment. 5 Nazi Germany used its control over Zeiss in Jena, 
which could influence by cartelization Bausch and Lomb in the 
United States, to induce Bausch and Lomb to reject British and 
French orders for military optical equipment prior to American 
participation in World War II. 6 Research or production by an ad- 
versary may be blocked by cartel refusals to license patents or to 
disclose information necessary to use them. 7 An adversary's industries 
may be injured by cartelized price cutting ("dumping") ; by buying 
up critical materials ("preempting") ; or by withholding critical in- 
termediate products ("hoarding"). 

When economic warfare is waged as a secondary policy device, 
private competitive techniques, including cartel manipulations and 
similar methods, may remain important policy features. But when 



5 Useful general references are Berge, Cartels : Challenge to a Free World 
(1944) ; Borkin and Welsh, Germany's Master Plan: The Story of Industrial 
Offensive (1943) ; Hexner, International Cartels (1946). For studies in special 
areas, see Hexner, The International Steel Cartel (1943) ; Marx, International 
Shipping Cartels (1953). Detailed materials concerning Nazi cartel operations 
will be found in U.S. v. Krauch (I. G. Farben Case), VII, VIII, Trials of War 
Criminals (1952) ; U.S. v. Krupp, IX Trials of War Criminals (1953) ; U.S. v. 
Flick, VI Trials of War Criminals (1952) ; Nurenberg Military Tribunals. See 
DuBois, The Devil's Chemist (1952} ; Reimann, Patents for Hitler (1942). 
Modern cartelization patterns and regulations are described in Edwards, 
Cartelization in Western Europe (1954) and Miller, Competition Cartels and 
Their Regulation (1962). 

6 See Borkin and Welsh, Germany's Master Plan, 271-288 (1943). 

7 See Reimann, Patents for Hitler (1942). 



16 

military force is the primary policy instrument, the most frequent 
circumstance in which economic warfare will be found in a secondary 
policy role, private commercial techniques are overshadowed by de- 
vices to destroy the enemy's supplies, storage facilities and produc- 
tion. These devices include, typically, air and sea bombardment of 
depots and shipping facilities, sabotage, and variations of blockade 
to interdict the water, land and air transportation of the adversary. 

2. Protracted Harassment and Economic Sortie 

Usually economic warfare is waged in the form of protracted 
harassment. The strategist gradually attrites the adversary's resources 
to attain his objective. 

Economic warfare by protracted harassment is effective in a sec- 
ondary policy role. Blockades, embargoes and boycotts, often associ- 
ated with military hostilities, are typical harassing techniques. 

Alternatively, and less frequently, economic warfare is conducted 
in the form of economic sorties. One of the best examples, seldom 
recognized by those unacquainted with economic warfare, was 
mounted by Spain against Napoleon in 1802. The Spanish objective 
was to force France to cede Louisiana to the United States. The ob- 
jective was accomplished by Spanish withdrawal of the right of 
American citizens trading on the Mississippi to deposit goods at 
New Orleans pending ocean shipment, a right conferred by the 
Treaty of San Lorenzo (Pinckney Treaty) of 1795. 

3. Economic Sortie and the Louisiana Purchase 

In 1800, Napoleon, in the Treaty of San Ildefonso, required Spain 
to retrocede Louisiana to France. Napoleon planned to use Louisiana 
as a source of food and naval stores to support a French Caribbean 
coffee and sugar empire. The hub of this empire was to be Santo 
Domingo. France had acquired Santo Domingo in 1795. But by 1800, 
the island had fallen under the sway of Toussaint L'Ouverture. A 
necessary condition to execution of Napoleon's design was pacifica- 
tion of Santo Domingo by the French. 

Because Santo Domingo had apparently slipped irretrievably from 
French control during negotiations for the Treaty of San Ildefonso, 
the Spanish did not suspect immediately the scope of Napoleon's 
Caribbean plan. His plan embraced construction of the empire from 
Spanish Caribbean colonies. These he would force Spain to disgorge 
at his convenience. 

Although Spain had acquired Louisiana from France in 1762, her 
possession of the territory had never been secure. Louisiana was re- 
garded by Spanish officials both as a wasting asset and as a probable 



17 

victim to American expansion. France, in Louisiana might block an 
American push into the Floridas or into the Southwest. 

But when Napoleon committed twenty thousand men in an effort 
to overthrow L'Ouverture in 1801 and squandered thousands of 
reinforcements upon the expedition, the extent of his appetite for 
Spanish colonies became painfully clear. Santo Domingo would 
serve as the naval base and Louisiana the supply depot for a rapid 
extension of French Caribbean influence. 

Kelying upon the failure by Napoleon to secure recognition of the 
Prince of Parma as King of Tuscany, which he had agreed to do in 
return for the retrocession of Louisiana, Spain refused to surrender 
the territory. She prevailed in this bold position throughout 1802 
principally because Napoleon's military expedition to take possession 
was frozen into its Dutch harbors in the severe fall and winter of 
that year. 

The United States had expected to inherit New Orleans and its 
environs when the grip of Spain finally faltered. Accordingly, in the 
spring of 1802, negotiations commenced between Talleyrand and 
Livingston for purchase by the United States of the French territory 
recently acquired from Spain. 

The Treaty of San Ildefonso, by which Spain retroceded Louisiana 
to France in 1800, remained secret until 1801. The terms of the 
treaty were then imperfectly revealed. 

When Livingston commenced his negotiations with Talleyrand, 
he labored under the misapprehension that the Floridas, as well as 
Louisiana, had been ceded to France. His defective state of informa- 
tion, coupled with the evasiveness of Talleyrand and the indecisive- 
ness of Napoleon, caused the negotiations to be protracted inconclu- 
sively through the summer of 1802. 

Spain appreciated her inability to hold Louisiana if the force 
assembled by Napoleon was dispatched to take the territory. On the 
other hand, the difficulties of the French in Santo Domingo were 
becoming notorious. Yellow fever had weakened the French army, 
slain its commander, and threatened the expedition with destruction. 
The troops in Holland might be diverted to Santo Domingo. Al- 
though neither equipped for a Caribbean campaign nor immune to 
yellow fever, the efforts of these troops, coupled with those of the 
French "immunes" on the island, might overcome the disorganized 
and demoralized insurgents. 

Spain was aware that Florida had been mentioned in the negotia- 
tions with Talleyrand. Napoleon, never the soul of honesty, might 
sell the Floridas and coerce Spain to transfer them. A major bastion 
to valued Cuba then would be lost. 

The Spanish position was an unenviable one. Nevertheless, Spain 



18 

was favored by Napoleon's financial strictures and by his deepening 
despair over the Santo Domingan adventure. 8 The Americans in 
Louisiana would prove uncongenial neighbors. But Spain might lose 
her Caribbean territories to Napoleon unless that conqueror's dream 
of empire, dependent upon his possession of Louisiana, finally could 
be dispelled. 

In October 1802, under these circumstances, Morales, Spanish In- 
tendant in New Orleans, withdrew the "right of deposit," announcing 
he did so upon his own initiative. He was instructed to say this in 
the secret Spanish order for the withdrawal. 9 

The right of deposit was critical to the United States to permit 
rapid development of its western lands. American traders on the 
Mississippi were inconvenienced and annoyed. Many believed Napo- 
leon had ordered the withdrawal. 

President Jefferson and the Congress responded with alacrity. The 
President appointed Monroe as Minister Extraordinary to act with 
Livingston. Congress appropriated funds for an intensification of 
negotiations and for part payment of the contemplated purchase 
price. 

Dismayed by the fate of his Santo Domingan expedition, near 
bankruptcy, and faced with a war with England, Napoleon was now 
confronted with a threatened American seizure of New Orleans and 
a possible Anglo-American alliance. It was simple common sense to 
reap what advantage he could from the breached Treaty of San 
Ildefonso and sell the Louisiana Territory to the United States. 

Avoiding constitutional obstacles to the acquisition of this unex- 
pectedly large area, Jefferson advised his colleagues the less said 
about the legal points involved the better. 10 The United States took 
possession of Louisiana after the French had held it for only twenty 
days. 

In the atmosphere of rejoicing over the cession : France because 
she had the purchase price — which Napoleon imprudently lavished 
on landing craft to invade England; the United States because it 
controlled the Mississippi and had new lands for its citizens to 
exploit; the modest pleasure of Spain in eliminating the menace of 



8 Napoleon, brooding in his place of honor at a small soiree in January 1803, 
burst out to the astonishment of the guests : "Dam'n sugar, dam'n coffee, dam'n 
colonies." Pratt, A History of United States Foreign Policy, 96 (1955). 

9 Misled by a smokescreen of Spanish entreaties not to sell the territory, 
American historians wrote off the withdrawal as bungling by a colonial bureau- 
crat. Disclosure that withdrawal was pursuant to a Spanish order has not 
eliminated the confusion. Pratt, op. cit., 92 (1955). 

10 Latane, A History of American Foreign Policy, 110 (1934). 



19 

Napoleon to its Caribbean possessions was obscure. This is a tribute 
to the finesse of the Spanish action. 

The seller was tactfully coerced — the buyer indelicately excited. 
Tension was attenuated because Morales' order was rescinded when 
the decisions to buy and sell were made. 

The Spanish plan required manipulation of two legal features. 
First was construction of the Treaty of San Ildefonso (1800). Spain 
claimed Napoleon had breached the treaty. This gave Spain an argu- 
ment for retaining Louisiana, set Napoleon "up for the kill," and 
bought Spain time and space for maneuver. The right of deposit 
would be moot if New Orleans was ceded to the United States. 

The plan was based upon a shrewd analysis of the pressures upon 
Napoleon, Jefferson and the United States Congress. The execution 
was effective because of careful timing of withdrawal of the right of 
deposit and its equally prompt restoration. 

4. Principles of the Economic Sortie: Comparison With Elements 
of Military Strategy 

As used by Spain against Napoleon, the economic sortie typically 
has been a form of economic warfare waged by weak against more 
powerful states. Seldom will these weaker states enjoy the resources 
required for economic warfare by protracted harassment; nor can 
they hazard the violent physical responses by their adversary which 
protracted harassment tends to induce. 

In the economic sortie, economic coercion creates psychical dis- 
equilibrium in the power elite of the adversary. Sir B. H. Liddell 
Hart has described psychical disequilibrium as "the sense of being 
trapped." u 

Strategy in military and economic warfare share this common 
purpose. The strategist seeks to dislocate the value processes upon 
which the power elite of the adversary relies. Thereby the psychical 
equilibrium of this elite is disturbed so that its alternatives for 
choice are narrowed to the area the strategist desires. 

The Sense of "Entrapment" 

A "sense of being trapped" springs from intuitive pessimism com- 
pounded by an induced belief that observed facts are unalterable. 
The condition typically is temporary; and this requires continuing 
action by the strategist to insure adherence by the target elite to the 
coerced decisions. Military and economic warfare strategists must 
play continually upon the twin keys of pessimism and observation. 

The drive for personal security contributes to the conviction of a 
power elite, possessing maximum values within a group or the maxi- 

11 Liddell Hart, Strategy, 340 (1954). 



20 

mum opportunity to attain these values, that "security" lies in pre- 
serving the status quo. Intuitive pessimism stems from liaison of the 
postulate that change will probably be detrimental to the elite unless 
change factors are controlled with the observation that these factors 
tend to elude control. 

In the economic sortie, the adversary power elite is confronted with 
sudden, radical and detrimental change. During this confrontation, 
the reaction of the adversary may be to accept the demands of the 
economic warfare strategist before the situation further deteriorates 
— the power elite assuming that if change is accepted a situation can 
be stabilized. This is the sense of resignation or entrapment in the 
power elite of the adversary which the strategist seeks. The desired 
process is retrogressive — a slow falling back by the adversary power 
elite to postures which it believes it can maintain. 

Apart from this coincidence in objective of military and economic 
warfare strategies, there are other similarities as well as dissimilari- 
ties in principles. These should be understood to permit economic 
warfare, particularly the economic sortie, to be used with maximum 
effect by military officers in command or advisory positions. 

Target Analysis : The Power Elite 

The number, complexity and mobility of the power elite of the 
adversary are matters considered in military or economic warfare 
strategy. The less the power elite in number and complexity, and the 
less mobile its membership, the simpler becomes identification of key 
elite members and appraisal of their perceptivity and sensitivity. 
When the critical elite members are defined — those who have the 
power to make the decisions desired — effective and economical meas- 
ures to disturb their psychical equilibria can be selected. 

The present trend in governments of heavily populated states is 
towards complex power elites. Developments in the United States, 
the Soviet Union and Red China are examples, although China, 
historically, has exhibited complex governmental structures. This 
trend is accelerated by concomitant trends towards "neofeudalism" 
in world organization. 12 

Under these conditions it is difficult for either a military or eco- 
nomic warfare strategist to determine the points within the govern- 
mental structure of an adversary at which the desired decisions 
might be made. There have been few instances in modern times, for 
example, in which the power to make all critical decisions has been 
concentrated in a single person within the governmental structure of 
a major state. The administrative requirements of a major state 



12 See Fn. 19, infra, this Chapter. 



21 

weigh against such concentrations of power. Hitler and Napoleon 
perhaps come closest to exemplifying the hypothetical total concen- 
tration. 

An adequate appraisal of Hitler's personal influence within his 
government was not made by Allied intelligence agencies before or 
during World War II. His degree of perceptivity of his environ- 
ment and the psychical points at which he was particularly vulner- 
able to attack were not accurately ascertained. 

The force of Hitler's personal leadership was demonstrated at 
intervals. His ability to retain his grip upon the German government 
after the attempted assassination in 1944 is a salient example. A great 
deal was learned about his personality and peculiar limitations when 
the war was over. But at no time during the war were the Allies 
able to disturb by military, psychological or economic means Hitler's 
psychical equilibrium in the manner that the equilibrium of the 
Fascist power elite was disturbed in Italy. 

The defeat of Nazi Germany was accomplished by blindly groping 
forward to lay waste German military resources. This created a 
serious temporary European power vacuum. The power of the 
victors was substantially diminished. 

An economic sortie directed to disturb the psychical equilibrium 
of Hitler would have been futile because Allied intelligence could 
not have supported it. To service effectively an economic sortie 
directed against the power elite within a complicated governmental 
framework, a more efficient intelligence system is required than any 
possessed by the combatants of World War II. 

In the Age of Napoleon the difficulties in producing adequate 
intelligence were not equally great. The perceptivity, sensitivity and 
authority of Napoleon, the most analyzed man in history, were well 
known to his contemporaries. Many of these contemporaries at vari- 
ous times were both his allies and enemies. 

After Napoleon's military reverse at Leipzig, which resulted in a 
loss of confidence in him by many of his officers and men, his 
enemies capitalized upon his quick perception of the morale of his 
troops and his unwillingness to fight with troops of low morale. 
Ignoring Napoleon's threat to their flanks, the Allies moved directly 
upon Paris. This was the major French supply base and the symbol 
of French unity and poAver. The loss of Paris was the crowning blow 
to the morale of the French army. Although he retained an army of 
substantial size, Napoleon abdicated when he concluded its morale 
could not be restored. 

The economic sortie, as in the Louisiana Purchase, could be used 
effectively against Napoleon. The Spanish knew Napoleon, person- 
ally, could decide, once and for all, whether the Louisiana Territory 



22 

would be ceded to the United States or not. No Frenchman would 
quibble with him about it. The Spanish could also appraise the 
pressures to which Napoleon was subject and, based upon their past 
experience with him, how he was likely to respond to additional 
pressure placed upon him. 

The less complicated the governmental structure of the adversary 
and the less complex its power elite, the less becomes the strategic 
intelligence burden in military and economic warfare. It is an 
anomaly that the economic sortie has been used most frequently by 
small states against great ones — when the intelligence burden is 
heavy — and less frequently by large states against small ones — when 
the intelligence burden is relatively light. 

Assuming adequate intelligence relative to the identity, mobility, 
perceptivity and sensitivity of the target power elite, the techniques 
selected for dislocating the value processes of the adversary in mili- 
tary or economic warfare should be those conserving the resources of 
the strategist. This principle is described as "economy of force" in 
military operations. The principle is implicated equally in economic 
warfare. 

Economy of force requires relationship of the means available to 
the end sought. At the outset the question is one of the intensity of 
value dislocation required. 

Limitations Upon Impact of Economic Warfare 

The intensity of impact of economic warfare upon a target will 
usually be much less than that developed by military methods. A few 
American writers, including those dealing with Communist economic 
warfare, appear to believe the potential effects of economic warfare 
and military warfare can be roughly equated. 13 

There is little in the history of economic warfare to justify this 
belief. In a culture conditioned to the use of wealth as a major basis 
for the exercise of power the tendency is to overestimate the potential 
of economic warfare. 

The degree of psychical disequilibrium which a strategist must 
produce depends upon the resistance of the target elite. This re- 
sistance may be so intense that the degree of disequilibrium required 
may necessitate more coercion than can be developed in economic 
warfare. 

Military power applied to an adversary may force major policy 
changes. Economic warfare alone seldom achieves this result. If an 
economic sortie cannot be combined with existing pressures upon an 
adversary, collateral pressures should be developed by supplementary 
economic, psychological or military methods. 

13 E.g., Allen, Soviet Economic Warfare (1960), passim. 



23 

When complete psychical disequilibrium of an adversary is sought 
by a strategist, economic warfare often will be found to play a part 
in creating the disequilibrium. On the other hand, economic warfare 
usually will be only one of several policy devices involved. 

When Lee was maneuvered out of his defenses at Petersburg in 
1865 by Grant, he abandoned the line of the Weldon Railroad, which 
would have been the short route to a junction with the retreating 
Confederate Army of Johnston in North Carolina. Lee could look 
for no supplies over this rail line, Wilmington, North Carolina, 
having fallen to the Union forces. His supply shortage forced his 
withdrawal towards the Confederate supply center at Greensboro. 

Hotly pursued by the Union Army, Lee lost Ewell's Corps, cap- 
tured at Sayler's Creek. This cut heavily into his fighting strength. 
He then discovered Union elements entrenched across his line of 
withdrawal. His cavalry commander informed him that these ele- 
ments could be driven off. But further difficulties complicated his 
operational planning. 

The morale and physical condition of his remaining troops were 
poor. Many of his officers and men were willing to continue the fight. 
But many others had discarded their weapons and, while still with 
the Army, had abandoned their units. 

Rations ordered to Lee at Amelia Court House had not arrived 
due to an administrative oversight. Rations on hand for the Army 
were low and forage for animals was exhausted. Neither could be 
replenished from the countryside. 

The Confederate Army had hoarded its ammunition. Confederate 
ordnance officers reported approximately 75 rounds per man of small 
arms ammunition and 93 rounds per gun for artillery. This was suffi- 
cient for one major engagement. There were, however, no other 
ordnance supplies available to the Confederates in Virginia. The 
Union blockade combined with seizure of the copper mines in Tennes- 
see had created a shortage of copper needed to manufacture percus- 
sion caps. 14 Without percussion caps, most of the small arms then 
used by the Confederacy would not fire. At Appomattox, copper suffi- 
cient to manufacture percussion caps for a combat expenditure of 
two weeks was on hand in the Confederacy. This shadow overcast 
any further operational planning Lee might undertake. 

Lee, at this time, was the single member of the Confederate power 
elite whose decision could irretrievably unlock the defenses of the 



14 Brigadier General E. P. Alexander, a Confederate officer with much experi- 
ence in ordnance supply, saw no answer to this "quandary." Alexander, Military 
Memoirs of a Confederate, 54 (1912). 



24 

South. If the Army of Northern Virginia surrendered, other Con- 
federate armies in the field would fall like a stack of cards. 

Possibly no single factor mentioned would have induced Lee to 
surrender at that particular time and place. But his perception of a 
combination of detrimental pressures, the combination being to a 
degree fortuitous, convinced him that surrender was the only ra- 
tional alternative. 

His logistical problems were an indirect outgrowth of economic 
warfare by the Union and the shortage of copper was a direct effect 
of the Federal naval blockade. However, it was obvious to Lee, and 
to most of his senior officers, that military blows would fall which 
he could not resist with the fragments of his army remaining. The 
surrender was produced primarily by military pressure. Economic 
warfare tended to affect principally its timing. 

If multiple pressures cannot be developed against an adversary 
by the state of the economic warfare strategist, the simplest method 
for combining economic sorties with other coercive devices is to 
array a number of states in economic warfare. This might be done 
under the auspices of an international organization, such as the 
Organization of American States. 

The exercise of military command under the aegis of an interna- 
tional organization may complicate decision making. The flexibility 
of military power may be limited in a fashion that compensation for 
the limitation may be required, such as an increase in military force 
applied or an extension of the area of hostilities to permit freedom 
of maneuver. 

Economic warfare under the aegis of an international organization 
requires less coordination in decision making. The intensity of impact 
tends to be increased by multilateral economic action. The principle 
of economy of force thus tends to favor unilateral military action and 
multilateral economic action. 

Sustentive Range and Ambit of Arrest 

If economic action in the conflict situation is considered capable 
of creating the degree of psychical disequilibrium in the power elite 
of the adversary sought by the strategist, either alone or concomi- 
tantly with some other policy device or devices, then two additional 
problems bearing upon the principle of economy of force should be 
considered. The economic technique selected should have: (1) "sus- 
tentive range," and (2) an adequate "ambit of arrest." 

"Sustentive range" means the degree to which the economic tech- 
nique selected is amenable to supplementary action. Is it a technique 
which tends to preclude supplementary action ? A power elite, forced 
to make a basic decision, must be locked upon its course. Psychical 



25 

disequilibrium is a temporary condition — and supplementary deci- 
sions will be required to execute any coerced policy. 

Even though psychical disequilibrium of the desired degree has 
been created, there must be follow-up or supporting pressures as the 
effects of an economic sortie diminish. Deviations by subordinate 
officials of an adversary, for example, can alter a decision radically 
as it is executed. It may be necessary for the strategist to bring pres- 
sure upon these subordinates as well as upon the basic decision 
makers. Certain economic devices, such as manipulations of foreign 
aid, tend to lack sustentive range and, for this reason, violate the 
principle of economy of force. 

"Ambit of arrest" refers to the likelihood of suppression by the 
strategist of the collateral effects of an economic weapon. Elements 
of "feedback" or "chain reaction" in economic warfare may attrite 
the resources of the state of the strategist or his allies. Can this 
feedback or chain reaction be controlled if the economic weapon 
under consideration is selected? 

In the Nazi Regime, feedback from "defensive" economic warfare 
undertaken by Hitler against what he considered a private economic 
warfare program intended to undermine the financial structure of his 
government, resulted in a loss to the Nazi of foreign exchange and 
consolidation of the power of the SS within the Nazi hierarchy to 
the discomfiture of many Nazi officials. Liaison of this defensive 
economic warfare with persecution of German Jews provided an 
entering wedge for the SS. 

As early as 1936, Hitler procured a law imposing mandatory pun- 
ishment of death and confiscation of property upon a German who 
smuggled property abroad or left property abroad "for his own 
gain or for other low motives" so that damage was inflicted upon 
the German economy. 15 Taking advantage of this problem of outflow 
of assets through emigration, SS officials inaugurated in 1938 an 
emigration program in which foreign assets of wealthy Jews in Ger- 
many were to be confiscated to subsidize the passage of poor Jewish 
emigrants. The program fell under the supervision of Reinhardt 
Heydrich in 1939. 

Goering, and a few others high in the Nazi Party hierarchy, were 
alert to the economic problem the Heydrich program presented. 
Foreign exchange was being used up which Germany badly needed — 
with the difference between the amounts confiscated and the amounts 
paid for passage apparently lining the coffers of the SS. 

Schacht, President of the Reichbank, proposed an alternative plan 
negotiated with England and the International Refugee Committee. 

15 U.S. v. Altstoetter, III Trials of War Criminals, 182 (1951) Nuremberg 
Military Tribunals. 



26 

Schacht's Plan was to freeze the assets of the German Jewish Com- 
munity and use these as security for a loan to obtain funds for 
passage. The loan was to be repayable in twenty or twenty-five years. 
The SS could not be permitted to do away with the security for the 
loan and the program would thus have to come under the supervision 
of Schacht in the Reichbank. 

The Schacht Plan was rejected by Hitler, who failed to grasp the 
advantages to the SS and disadvantages to Nazi Germany as a whole 
stemming from Heydrich's management. Beyond the reach of the 
Reich Ministry of Justice, and thus enjoying practical immunity 
from civil or criminal action — amenable, in fact, only to the heavy- 
handed personal justice of Hitler, whose attention was distracted by 
military matters; senior officers of the SS ran the emigration pro- 
gram substantially as they saw fit. The program was extended to the 
conquered territories with commensurate financial returns to the SS. 

As Hitler's policy shifted from emigration to his "Final Solution 
of the Jewish Problem,'' administration of the program by the SS, 
commencing in 1938 as an intended form of defensive economic war- 
fare, burgeoned into a commercialized holocaust. 16 Genocide now 
became one of the most profitable business ventures in history. Re- 
sources needed by Germany for the conduct of the war were expended 
foolishly and mercilessly in exterminating helpless people. Through 
ransom and other devices, the SS was increasingly enriched. By 1944, 
enjoying both economic power and the confidence of Hitler, the SS 
had become a state within a state. How this power could have been 
accommodated comfortably in the organization of a successful Nazi 
Germany is speculative. By any token, its power was a remarkable 
feedback from early Nazi experiments in economic warfare. 

Economic warfare, like military warfare, to produce maximum 
psychical disequilibrium in the adversary, requires operations against 
points of minimum resistance. There are, however, differences in the 
range of selection of targets in economic and military warfare and 
also differences in time and disclosure factors when military and 
economic warfare techniques are employed. 

Flexibility in Target Selection 

In military warfare, the goal of psychical disequilibrium of the 
adversary is attained through the threat of destruction or actual 
destruction of human or material resources. Although the ultimate 
goal of economic warfare is identical, there is greater selectivity in 
intermediate policy objectives. For example, economic warfare may 
be directed against the legal institutions of an adversary. These 



16 See Reitlinger, The Final Solution, 434, et seq. (1953). 



27 

would be an unremunerative target for military action. But disrup- 
tion of the legal institutions of the adversary will tend to dislocate 
all value processes upon which the adversary relies. 

An attack upon the legal institutions of an adversary often will 
require combination of psychological and economic measures. The 
legal system is weakened by propaganda reducing confidence in its 
administrators. The flow of wealth to the adversary is then decreased 
or increased radically to strain the weakened system. Psychological 
measures are unnecessary when the legal system is poorly developed 
or debilitated. A "wealth overload," such as that produced by pre- 
mature industrialization of an underdeveloped nation, may place 
burdens upon its legal system which cannot be sustained. 

A dramatic example of the potential political consequences of a 
"wealth overload" upon a primitive or debilitated legal system is 
dissolution of the Mongol Empire resulting in part from adoption 
of the "tax farm" as a revenue system. This policy was recommended 
to the Mongol Khans by Yelui-Ch'uts'ai, a North Chinese in the 
service of Jenghiz Khan. 17 

Probably Yelui did not foresee the developments following upon 
his recommendation. Millions of his fellow countrymen were threat- 
ened with extermination. As an alternative, Yelui recommended their 
preservation as a tax resource, a policy then not followed by the 
Mongols but subsequently adopted by them. 

During an era in which the Mongol cavalry froze the whole of 
Europe in an ice of fear, the simple Yasak, or constitutional law, of 
the Mongols could not reconcile conflict among the hordes produced 
by competition for tax wealth. This struggle sapped the expansionist 
energy of the Mongols. Its divisive influence brought the Mongol 
Empire to an end. 

Time-Space and Disclosure Factors in Economic Warfare 

In addition to the range of selection of targets in economic war- 
fare, which greatly exceeds that of military warfare, the direction 
and method of approach to the adversary also differ. This gives rise 
to different emphases upon the element of time in planning and 
executing economic warfare policy and upon the importance of dis- 
closures of plans to an adversary. These differences may be intro- 
duced by describing a simple military operation. 

On the second day of the Battle of the Wilderness, in 1864, the 
right flank of a division of General Sedgwick's Federal 6th Corps, 
covered in front by earthworks, was exposed by the unexpected with- 

"Curtin, The Mongols, 143-144 (1908); Howorth, History of the Mongols 
(1880) passim. 



28 

drawal of an adjacent unit. The exposed flank was discovered and 
reported to General Gordon, a Confederate brigade commander. 
General Gordon sought the permission of his corps commander, 
General Ewell, to attack this weak point with his brigade. However, 
Gordon's division commander, General Early, believed the Union 9th 
Corps was supporting the right of the 6th, and prevailed upon 
General Ewell to withhold permission. 

After much time was lost, and darkness was approaching, General 
Ewell gave Gordon the requested permission at the insistence of 
General Lee, who had just arrived on that part of the field. The 
Union division on the flank was surprised and two of its brigades 
routed. But night fell before the Confederate attack could be fully 
developed. The assault lost momentum and the Union generals ob- 
tained sufficient respite to reinforce the position of the 6th Corps. 

The Union weakness was temporary ; and the Union generals had 
the resources to remedy it. Had speed been developed in planning 
and launching the Confederate attack, time would have worked 
against the Union Army. The shift of men and materials (mass) 
to the point of weakness by the Union generals was permitted by the 
delay of the Confederates and the cover of darkness. 

The military maneuver (using the term as embracing both plan- 
ning and execution) has as its major feature the movement of men 
and material in space to concentrate or mass power at critical points 
— those at which decisions can be obtained. The space and mass prob- 
lems in military and economic warfare are much the same. 

Gordon's problem was to limit the space for maneuver by the 
Union force while developing additional space for his own maneuver. 
Upon disclosure of Gordon's intention — which occurred when the 
strength of his attack was demonstrated — the Union force extended 
its space for maneuver by utilizing its ability to reinforce the point 
of attack. The space in the area of confrontation was constant. 
Gordon's space for maneuver was decreased as the Union space for 
maneuver increased. Space is determined by the ability to utilize 
mass. 

The analogy is substantially complete in economic warfare. A vic- 
tim of economic attack can look to its actual or potential allies for 
assistance just as the Union generals could call up reinforcements 
to help the 6th Corps. The more help the target of economic attack 
receives, the less the maneuver space of the attacker. 

Two differences are in time and disclosure factors. These factors 
also differ when economic warfare is used as a primary policy device 
and when it is used as a secondary policy device. A third difference 
lies in the emphasis upon institutional changes in economic warfare 
which are minimal in military warfare. 



29 

In the military maneuver, the time elapsing while a plan is formu- 
lated and its execution begins increases or decreases the chance that 
the adversary will discover prematurely by inadvertence of the 
planners or by espionage the nature, time and point of attack. If 
the nature, time and point of attack are not disclosed until the attack 
is executed, the psychical disequilibrium of the adversary will be 
intensified. 

As the level upon which strategy is formulated becomes higher, 
the emphasis upon concealing the nature and point of a proposed 
attack and the ability to conceal these elements progressively de- 
creases. Emphasis upon concealing the time of the attack correspond- 
ingly increases. In a future possible war between the United States 
and the Soviet Union or Communist China, no appreciable uncer- 
tainty exists concerning the nature and probable points of attack 
by any contestant. The elements which will be held most secret are 
the times for attack when these are determined and the resources 
which would be committed. 

When economic warfare is used as a secondary policy device, the 
requirements of the primary policy device will control. In this sec- 
ondary role, economic warfare often will be waged to support mili- 
tary action. When strategy at a high level is supported, the method 
and direction of economic warfare will be limited only by the 
requirement that the time and resources for attack be concealed from 
the adversary. If military strategies at lower levels are supported, it 
may be necessary to conceal the nature and point of the military 
attack as well. 

In either instance, the time elapsing between the time strategic 
planning commences and the time the plan is executed will condition 
the method and direction of economic warfare. Neither the direction 
nor method of economic warfare, considering the time of exposure 
of the military plan to potential disclosures, should compromise ele- 
ments concealed to enhance probable success of the military action. 
Economic warfare in this situation is used to attrite the defense or 
blunt the attack of an adversary. Reliance is placed upon military 
action to produce psychical disequilibrium of the adversary power 
elite. 

When economic warfare is employed as a primary policy device, 
the element of delayed disclosure to produce surprise, so critical in 
military operations, is not equally significant. When a strategist relies 
upon economic warfare as a primary policy device, psychical dis- 
equilibrium of the adversary is produced by realization of an antici- 
pated detriment. It is not the shock of the unexpected, as in military 
operations, producing disequilibrium by disorientation and distrac- 
tion, but rapid progress of the expected which enhances intuitive 



30 

pessimism of the adversary power elite. There may or may not be 
danger in disclosure of the economic warfare plan. The premium 
upon time in planning economic warfare as a primary policy device 
thus often will be much less than in planning military strategy. 

Premature disclosure would have spoiled the effect of the Spanish 
withdrawal of the right of deposit at New Orleans. Napoleon's 
pessimism concerning his Caribbean venture was stimulated largely 
by his military difficulties in Santo Domingo. The Spanish recog- 
nized this ill fortune and took advantage of it. Premature disclosure 
of the Spanish plan would have crystallized a counterpolicy for 
Napoleon — not induced his sale of Louisiana by compounding his 
pessimism. Napoleon was highly perceptive and could be counted 
upon by Spain to take changes in his environment rapidly into 
account. 

But the perceptivity of the adversary power elite in the conflict 
situation may be such that disclosure or "leaks" of a plan may be 
necessary to create a psychological milieu in which an economic 
sortie will have maximum effect. Time may be required to insure 
perception by the target — or to bring home to the target the nature 
of the attack proposed. 

A delay of this sort usually cannot be tolerated in military opera- 
tions. In the Mau Mau War in Kenya, for example, military action 
was against small and mobile groups. In few of these was a power 
elite clearly defined and the perception of the leaders who could make 
decisions for the Kikiyu was so limited that they could not readily 
grasp the extent of the power arrayed against them. There could 
be no delay, however, for indoctrination. Militant tribal elements 
were hunted down and exterminated. The survivors were placed in 
compounds for a deliberate effort to reeducate them. 

In economic warfare, especially when waged by economic sortie, 
when the adversary power elite proves unperceptive the strategist 
must disclose his plan or elements of it so the target power elite can 
observe and appreciate its vulnerability. This would never be done in 
military operations other than as a feint or distraction. But the 
disequilibrium creating processes in military and economic warfare 
differ. The former disorients by surprise and shock; the latter by 
the shock of an anticipated detriment suddenly experienced. 

Problem' of Institutional Change in Economic Warfare 

The rapid institutional changes often required in economic war- 
fare, contrasted with the relative stability of institutions in military 
warfare, a third difference heretofore mentioned, place a premium 
upon the capacities of contestants in an economic warfare situation 
to alter administrative routines, legal procedures and doctrines, and 



31 

sometimes basic political tenets. In military operations, units may be 
reorganized, reequipped or retrained, but the basic patterns for these 
changes and the basic patterns for employment of the units change 
quite gradually. Military laws, standing operating procedures and 
administrative routines, are virtually static. The higher the level of 
military management, the more static these elements tend to be in 
order to avoid the disturbance at lower command levels which shifts 
in basic guidelines tend to produce. 

Major variables in military operations tend to be in physical con- 
ditions, such as weather, terrain; range and flexibility of weapons; 
number, health and experience of personnel. The smaller the unit for 
which action is planned, the greater the likelihood that unorthodox 
strategies and tactics will surprise the adversary by confronting him 
with unexpected situations. 

But the larger the force directed, and the more complicated and 
destructive the weapons with which the force is armed, the greater 
the need for simple and fixed routines for its employment. With the 
large force, as has been pointed out previously in this discussion, the 
emphasis is greater upon the time element than upon unorthodox 
technique or even upon secrecy concerning the method and point of 
attack. In any large force, we must deal at the level of execution of 
policy with small units, and it is here that the premium is upon 
unorthodox and unexpected action in conflict. 

To this extent there is a resemblance in degree to the institutional 
change required in economic warfare. The difference is that in eco- 
nomic warfare this institutional change is of value at high policy 
levels; although at these levels, institutions, and in particular legal 
institutions, tend to resist change. The more basic or fundamental a 
legal or political doctrine is found to be, the more difficult and time 
consuming the processes of changing it. 

The difficulty and tendency towards delay in change does not arise 
from failures of communication in explaining change to the political 
mass of the state of the economic warfare strategist. In primitive 
legal systems, change has been explained successfully through the 
appealing mysticism of revelation. Mature legal systems have sophis- 
ticated and effective mechanisms for change, such as the dialectical 
materialism of the Marxists or the doctrine of judicial supremacy, 
perhaps a less flexible device, developed by judicial decisions in the 
United States. These change devices are important safety elements in 
complicated societies. 

The resistance to changes in basic laws or political doctrines stems 
from the power elite of the community. This elite cannot predict with 
certainty the effect change will have upon the law and nonlaw con- 
duct patterns of the political mass. Experiments with "positive" law, 



32 

doctrines and operating institutions specialized to immediate al- 
though often temporary reductions in the intensity of conflict, are 
conducted constantly without excessive community disturbance. Ex- 
periments with fundamental law and political doctrine, policy state- 
ments of guidelines or basic value preferences of a community, are 
hazardous and unpredictable and for these reasons are undertaken 
infrequently. 

Power elites in monolithic societies, such as the Soviet Union, have 
demonstrated their ability to change positive law rapidly to support 
foreign policies in economic or other areas. Difficulty has been en- 
countered with basic law and political theory. 

Stalin's "Dual Market" concept, for example, the lodestone of 
Soviet economic warfare, was a sharp break from conventional 
Marxist-Leninist economic theory. Never completely accepted by the 
Soviet Communist Party during Stalin's lifetime, the concept was 
quickly repudiated after his death. 

The resistance to change or "legal inertia" encountered in at- 
tempted manipulations of legal and political institutions affects eco- 
nomic warfare principally in the planning stage because planning 
tends to be done in coercion of this nature principally upon a high 
policy level. The speed with which plans can be developed is inhibited 
and premature disclosures of plans are sometimes forced. As pre- 
viously indicated, in some forms of economic warfare and in certain 
policy contexts, these delays and disclosures may be advantageous. 
When economic warfare is used as a primary policy device, dis- 
closures may be desirable to insure perceptivity in the adversary 
power elite. In economic warfare by protracted harassment, time 
typically is of little significance in either planning or execution. 

But when economic warfare is waged by economic sortie, time and 
secrecy may be critical. Delays and disclosures stemming from legal 
inertia in planning may be compensated by speed and flexibility in 
using positive law and administrative routines as the economic sortie 
is executed. Planning at this policy level also is required. But pres- 
sures at the operational level exclude the full impact of formal legal 
inhibitions and place a premium upon invention and initiative. 

At this operational level in economic warfare, usually requiring 
rapid planning under pressure, naval and other military officers are 
likely to play an important part. The major problem of these officers 
at this policy level, apart from the difficulty in finding and correlat- 
ing facts, will probably be a problem in "legal strategy." How do 
legal institutions bear upon policies under consideration and how can 
these institutions be used effectively in executing a policy which is 
selected? It is in the context of "legal strategy," also, that the ad- 



33 

vantages of the "economic sortie" become apparent when compared 
with economic warfare by protracted harassment. 

5. Policy Advantages of Economic Sortie Techniques in Economic 
Warfare 

The context in which economic warfare is waged is in constant 
change. Unless the fact and nature of context changes are appreciated 
by all policy makers at all levels of decision in economic warfare, 
blind adherence to accustomed techniques, such as embargoes and 
boycotts, may damage the state waging economic warfare and non- 
participants in the conflict as well. This diffusion of damage, among 
other consequences, may give rise to authoritative characterizations 
by institutions of the general community that the damaging economic 
action is impermissive. Various detriments to the state waging eco- 
nomic warfare may stem from these characterizations. 

Economic Sortie as a Primary Policy Device 

In a wealth environment in which the resources of all competitors 
are sharply limited, as in private commerce or as in the international 
arena of economic conflict in the 18th and 19th centuries, private 
commercial techniques could be used effectively by a state to stifle 
competition and support monopolies in values. This wealth environ- 
ment was rapidly changing in the late 19th and early 20th centuries. 

A strategist contemplating economic warfare today discovers his 
adversary is no longer economically isolated as he might have found 
the adversary "naturally" isolated in the 19th century. In part, this 
is due to technological developments, including for future considera- 
tion developments in nuclear power. The more important reason for 
the disappearance of economic isolation, however, is the trend 
towards politicization of wealth distribution processes among states. 
The element of "economy" or "wealth conservation" in converting 
the resources of states into wealth is subordinated to estimates of the 
political advantage to be derived. 

Red China, for example, procures sugar from Cuba for political 
reasons rather than from more accessible and less costly sources. Pay- 
ments for the sugar are in goods or raw materials manufactured or 
produced without regard to a profit motive. The massive aid pro- 
grams of Western and Sino-Soviet states seem now permanent fea- 
tures in the structure of external relations of the states concerned. 

The politicization of wealth distribution processes is due in part 
to reactions by affected states to economic warfare by protracted 
harassment in the past. The more protracted and intense harassment 
becomes, the more rapid becomes generation of defensive energy. In 
part, the politicization of weath distribution processes also described 



34 

the preference of currently powerful states for economic warfare by 
protracted harassment. 

These influences of the past and trends of the present have pro- 
duced three conditions complicating the waging of economic warfare 
in any form which a strategist might select. (1) A neofeudal psy- 
chology attenuates the impact of economic action. (2) Predispositions 
by policy makers concerning economic warfare make joint economic 
action difficult to organize and, as previously indicated, joint eco- 
nomic action tends to be the most effective. (3) A maze of legal 
doctrines and administrative regulations make rapid economic action 
difficult to execute. 

Neo feudalism: Economic Reinforcement 

Economic and political ties are becoming tightly drawn among 
states: expectations of aid by states lacking or poor in resources, 
whether or not formalized in agreements, are becoming both stereo- 
typed and realized in fact. An emerging neofeudal psychology in 
both the Western and Sino-Soviet spheres of influence is replacing 
colonial ties. 18 For example, wheat, steel, aluminum, and the mental 
and physical resources involved in producing these things, are in- 
creasingly symbolized as "Free World Assets," vis-a-vis those of the 
Soviet or Sino-Soviet Blocs. 

During the Suez Crisis of 1956, a Soviet trading corporation 
breached its contract for sale of crude oil to Israel. Thirty years 
before, nondelivery of the promised oil would have been a major 
impediment to execution of the war plans of a state dependent upon 
foreign sources for fuel. The Soviet oil embargo proved a temporary 
annoyance in 1956. The necessary oil was obtained by Israel from her 
Western allies. 

In its economic war with Cuba, the United States can aggrandize 
the internal problems of the Castro regime by an embargo and 
boycott. But Castro can look to Sino-Soviet states for aid. This has 
included not only military supplies but sufficient food to maintain 
the Cuban people at a subsistence level. 



18 The enduring element of European medieval feudalism has been the psychol- 
ogy of status infused into the English Common and European Civil Law. The 
essence of neofeudalism is the expectation, now generally shared, that certain 
communities are entitled to economic assistance because of state status. The 
concept of reciprocal responsibility by a state so aided to support, politically 
or otherwise, the state or international organization furnishing economic as- 
sistance has not crystallized. Competition in foreign aid, a mild form of eco- 
nomic warfare by protracted harassment, reduces the prospect that this obliga- 
tion of reciprocal support is likely to develop by encouraging the recipient of 
aid to take advantage of its bargaining position. 



35 

It is no answer to the dilemma of the economic warfare strategist 
to suggest waging economic warfare against those states with no 
political friends. Not only are true political pariahs rare but those 
that can be found are unlikely to pose a threat justifying retaliation 
by economic measures. 

Alternatively, a strategist may seek assistance from other states to 
prevent escape by the adversary or ma}' act with such speed that 
escape is impossible. But past economic warfare by protracted harass- 
ment has created an environment in which joint economic action is 
difficult to organize and economic action in any form is difficult to 
execute speedily. 

Difficulty in Mobilizing Joint Action 

It has been pointed out in this Chapter that the most effective 
economic warfare is that waged jointly by two or more states. The 
best chance to obtain this cooperation is under the aegis of an exist- 
ing international organization. 

Article 41 of the United Nations Charter provides in part for an 
application by members of measures including " * * * complete or 
partial interruption of economic relations and of rail, sea, air, postal, 
telegraphic, radio and other means of communication * * * " when 
called upon to apply these measures by the Security Council. How- 
ever, political divisions within the United Nations, complicated by a 
rapid increase in membership, make effective cooperation in economic 
warfare within the framework of the Organization unlikely. This 
suggests that joint economic warfare can be organized most fre- 
quently within the framework of an existing regional organization. 
But action within these organizations as well as action under special 
agreements formulated for the purpose also suffer impediments. 

Economic warfare by Western states and those of Sino-Soviet 
orientation is complicated by the predisposition of allies or rivals to 
seek advantages as third parties in an economic conflict situation. 
In the Western bloc the predisposition is to reap commercial advan- 
tage for private profit from the conflict. British and Canadian trans- 
actions with Cuba, offsetting to a degree the impact of the United 
States embargo, are examples. 

The Sino-Soviet split has resulted in similar conflict within the 
Communist world, although political and not economic profit motives 
are dominant. Red Chinese aid to Albania, offsetting Soviet economic 
action against that country and weakening action against Albania 
by European Soviet satellites, and Chinese interference with Soviet 
aid to North Viet Nam illustrate the joint economic warfare problem 
of the Communists. 



36 

Apart from these obstacles to organizing joint action in economic 
warfare, policy makers are predisposed to resist participation in 
economic warfare by protracted harassment. 

There is a widely shared belief that economic warfare alone seldom 
can force a decision by an adversary. It is assumed that supporting 
techniques must be employed, sometimes involving a greater degree 
of physical violence than the situation is deemed to justify. While 
the actual effects which economic warfare can be expected to achieve 
depend upon the degree of psychical disequilibrium required in the 
power elite of the adversary, the negligible results characteristic of 
economic warfare by protracted harassment lend some support to the 
assumption that economic warfare alone can achieve no important 
effects. 

These policy makers also fear "feedback" injury in economic war 
fare. A characteristic of economic warfare by protracted harassment 
is the additional protraction and wide diffusion of its effects. The 
danger of stimulating panic is particularly acute. 

France, for example, withdrew short term credits to German and 
Austrian banks to undermine the Austro-German Customs Union of 
1931. These withdrawals contributed to the failure of a major 
Austrian bank. Seeking to forstall this French effort, England made 
an emergency loan to Austria. Retaliating, France withdrew gold 
from the Bank of England; whereupon England abandoned the gold 
standard to weaken the gold position of France. Disturbances pro- 
duced by these actions reinforced the impact of initial failure of the 
Austrian bank and caused numerous German bank failures. The 
latter were felt globally. 

Awareness of propaganda losses often incident to economic warfare 
contributes to the unwillingness of state officials to participate in 
joint economic action. The potential propaganda losses are balanced 
against potential gains to be achieved. 

The propaganda loss is based in part upon a general readiness 
by people everywhere to identify economic warfare with the planning 
of aggressive war charged against defeated political and military 
leaders of the Axis powers after World War II. This symbolic "guilt 
by association" has proven useful, especially to Communist propa- 
gandists. But more significant is the hypersensitivity of officials of 
new or underdeveloped countries to economic pressures — including 
those of an innocent and entirely innocuous nature. 

To relieve a famine in India, for example, the United States Con- 
gress directed the Administrator for Economic Cooperation to pro- 
vide emergency food relief on credit. 19 Unfortunately, the Adminis- 
trator was instructed to seek concessions. 

i» India Emergency Food Aid Act, 65 Stat 69 (1951). 



37 

These concessions were not a condition to the credit or stated 
explicitly in the statute. However, one major concession to be sought 
was removal of the Indian embargo on monazite sands, a thorium 
source. Another was increased sales of hemp to the United States. 

Propaganda hostile to the United States could be based upon the 
innocent coupling of relief with proposed agreements to buttress the 
military strength of the United States. The Communists were alert 
to their advantage. The Indian embargo and trade policies remained 
unchanged; and the United States lost much of the goodwill in India 
which its relief efforts might otherwise have engendered. 

The difficulty in obtaining cooperative state effort in economic war- 
fare might be compensated to an extent by speed, accurate direction, 
and force in economic action. But fused with the hostile psychologi- 
cal environment in which economic warfare is waged, is a legal 
environment limiting the flexibility and speed possible in formulating 
and executing economic warfare plans. 

As pointed out previously in this Chapter, and reiterated here 
for emphasis, institutional changes tend to be required in economic 
warfare. These include changes in legal institutions. More changes 
tend to be required when economic warfare is planned than when eco- 
nomic warfare is executed; and institutional changes in economic 
warfare are more extensive than those required in military warfare. 

"Legal institution" refers to a type of decisional process within a 
community. The description is based upon the presence of the element 
of "formal authority" within a community which has attained a level 
of complexity and achieved a degree of cohesion permitting formal 
location of a decision-making function within its power structure. A 
community might, for example, have ethical decisional processes, or 
ethical institutions, without the element of "formalization of power" 
associated with legal institutions. 

A group of power holders within the community make effective 
decisions which are translated into action at a formal policy level 
through legal institutions. This group has been described, in dis- 
cussing economic warfare intelligence problems hitherto in this 
Chapter, as a "power elite." 

The reader should not understand "power elite" as synonomous in 
most instances with a narrow clique which closely holds the power 
possessed by a community. In the state-community, the power elite 
typically is quite complex. Furthermore, the power elite is relative 
to the decisions required in a specified confrontation : who makes the 
effective decisions ? 

The reader should also consider that all power elites, viewed 
through time and not in relation to a static set of events, are mobile 
in membership. Human mortality, in addition to other mobility 



38 

factors, produces a "biological" revolution in any power elite ap- 
proximately each quarter century. 

A power elite uses the legal institutions of its community to ap- 
proximate a dynamic value equilibrium within the community mem- 
bership. The group attained cohesion in the search for common 
values. Unless the members have access to the values the group was 
organized to seek, cohesion will be weakened or lost. Cohesion in- 
creases or diminishes with the efficiency with which a value equi- 
librium can be approximated. The larger the group, the greater the 
difficulty in performing this function. 

Expressing the same idea in different terms, the power elite -inter- 
venes in subgroup conflict to regulate the tempo with which values 
shift within the community. The intervening policy makers con- 
sistently fail to keep abreast of the conflict events: a problem de- 
scribed as "culture lag." The dynamic value equilibrium can only be 
approximated. As Dean Pound once wrote, all thinking about law 
" * * * has struggled to reconcile the conflicting demands of the need 
of stability and of the need of change. * * * " 20 

National Legal Context 

Viewing economic warfare from the perspective of the power elite 
of the state of the economic warfare strategist, the dynamic value 
equilibrium of the state is threatened or disturbed by economic war- 
fare in two ways. There may be economic attacks by other states. 
Also feedbacks from offensive economic warfare policies may create 
disturbances. 

The economic warfare strategist thus is likely to find his economic 
warfare planning embarrassed by his own national legal doctrine: 
or the past expressions of policy by the power elite of his state com- 
munity, recorded or recalled, developed in past defenses to economic 
attack or in past efforts to offset feedbacks from offensive economic 
action. The economic warfare strategist tends to become entangled 
during offensive planning in patterns set by past defensive thinking. 

The national legal doctrine of interest to an economic warfare 
strategist in the United States usually will be found expressed in 
Federal statutes and administrative regulations. The impact of state 
policy within the United States upon economic warfare planning 
has grown progressively less; and recent decisions by the United 
States Supreme Court suggest negligible influence of state policy in 
future economic warfare planning. 21 

20 Pound, Interpretations of Legal History, 1 (1923). 

21 Landmark cases limiting potential state influence in economic warfare plan- 
ning and execution are Missouri v. Holland, 252 U.S. 416 (1920) ; United States 
v. Belmont, 301 U.S. 324 (1937) ; United States v. Pink, 315 U.S. 203 (1942) ; 
and Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964). 



39 

These national policy statements must not be viewed by the eco- 
nomic warfare strategist simply as an immutable and static doctrinal 
pattern through which a line of effective economic action is to be 
threaded. Decision makers do observe past policy statements (legal 
and otherwise) in dealing with current conflict. The statement may 
be influential in determining the end or goal sought. It is even more 
likely that the statement will be influential in the methods chosen to 
attain the end. 

Nevertheless, the problem of the economic warfare strategist is not 
simply one of avoiding "legal obstacles," either by fast legal foot- 
work or by skill in obtaining changes in legal institutions, but to use 
effectively existing or changed legal institutions to attain his eco- 
nomic warfare ends. The use of the institution is the major element 
of legal strategy in economic warfare. The use of legal institutions 
imposes two major requirements upon the economic warfare strategist. 

He must grasp the idea, first, that to obtain institutional changes 
required in economic warfare he must identify and interrelate both 
the variables in the confrontation requiring planning and the vari- 
ables supporting the legal institution which he seeks to change. The 
problem is illustrated in detail in Chapter II, dealing with United 
States defensive economic warfare against Castro Cuba. 

The strategist must appreciate, for example, the need for locating 
and identifying the policy makers in the confrontation; the ends or 
values which these policy makers seek; how the institutions the 
policy makers are likely to employ will affect persons whose responses 
in the confrontation are significant; and the probable nature of the 
responses of these affected persons. 

Once the relevant variables are firmly within his grasp, the strate- 
gist must then, as a second head of his problem, and the direct road 
to solution of it, realize that although he may plan economic coercion, 
his success in the legal strategy of coercive economic action will turn 
upon his powers of persuasion. How a power elite will respond in a 
confrontation may be predicted in part from legal doctrine appar- 
ently relevant to the facts. 

But the double pinions upon which the persuasive mechanism is 
based are adequate appraisals of (1) the understanding of the elite 
concerning the meaning of "law" and (2) the understanding of the 
elite concerning the meaning of "lawmaking." Who is thought to be 
authorized in the relevant legal order to make legal policy ? What is 
the appropriate time for making or remaking a legal policy? How 
should the legal policy be made or remade when the appropriate time 
arrives? The postulates of the power elite concerning these issues 
must be understood if it is to be persuaded to modify or permit the 
modification of legal institutions. 



40 

The postulates of power elites concerning these issues and the 
problems of persuasion consequently created for the economic war- 
fare strategist are discussed in greater detail subsequently. For 
present purposes, the reader should observe that practically all of 
the existing national legal doctrine relevant to economic warfare 
has been keyed to economic warfare by protracted harassment. This 
applies both to fundamental doctrinal statements and to statements 
concerned principally with operational method. 

When the economic warfare strategist favors the economic sortie, 
he presents fact situations to which past expressions of legal policy 
are inapposite. Adoption of the sortie technique is not a panacea 
which will eliminate the economic warfare strategist's national legal 
difficulties. But the technique will tend to free the strategist from 
the embarrassment of predispositions of his national power elite 
based upon existing legal doctrine. 

This is not to suggest that one is free to do things not specifically 
prohibited by legal doctrine. However, the sortie technique does per- 
mit the strategist to deal directly with postulates of the power elite 
concerning law and lawmaking and to present or consider for deci- 
sion with greater ease the variables in the confrontation. The likeli- 
hood of a rapid and adequate decision consequently is enhanced. 

Legal problems produced by the national law of the economic war- 
fare strategist are not, of course, the only legal problems encountered. 
The emphasis in this book is upon the international legal problems in 
economic warfare. 

International Legal Context 

However, in the perspective of "legal strategy" in the world com- 
munity, the economic sortie as a primary policy device also is believed 
to have advantages in speed and direction, and consequently potential 
effectiveness, outweighing advantages likely to be achieved through 
protracted harassment. These advantages in speed and direction 
arise, nevertheless, for a different reason than in the national law 
context of the economic warfare strategist. 

In the processes of authoritative decision through which the public 
order of the world community seeks to establish a dynamic value 
equilibrium, the modest goals having current general consensus are 
preserving minimum order and obtaining minimum destruction of 
values. Goals more conducive to stability than these seem presently 
beyond the capabilities of the rudimentary legal and political institu- 
tions of the world community. 

International administrative institutions, such as the World Bank 
and Monetary Fund, have been created as "neutral" authorities to 
interrupt certain kinds of coercive economic exchanges in their incep- 



41 

tion. This is because the protracted and diffused tensions generated 
by economic harassment have not been dissipated readily by negotia- 
tion or arbitration. Disputes involving economic warfare have been 
aired before organs of the United Nations or before regional agen- 
cies, such as the Organization of American States, and opinions have 
been expressed even when decisions have not been rendered. 

Resort to these international institutions probably will increase, 
especially among states which, since World War II, have renounced 
the use of certain kinds of coercive wealth practices in the charters 
of international organizations or in bilateral or multilateral trade or 
security treaties. New or underdeveloped nations, often targets of 
economic attack, are becoming both influential and vocal in interna- 
tional affairs and may be expected to invoke the procedures of inter- 
national organizations as a defense. 

Authoritative doctrinal statements concerning economic warfare 
as an outcome of the decisional processes thus briefly described are 
not numerous. It is evident, on the other hand, that international 
legal activity in this area is increasing. 

The major advantage of the economic sortie in this context is not, 
as in the context of national law, the presentation of facts to which 
existing legal doctrine is inapposite, but the reduction of invocations 
of world community authority. With less diffusion of injury in the 
economic sortie, there is less chance for a complaint. 

Interventions by the world community will usually occur after 
execution of the economic warfare policy has commenced. The im- 
portant bearing of national law, by contrast, tends to be upon the 
planning stage of economic warfare. 

The potential impact of international legal institutions upon the 
execution of economic warfare policies must be taken into considera- 
tion in economic warfare planning also. But if an intervention by the 
world community occurs during execution of the policy, a point 
clearly of "no return" for the policy maker, various "feedbacks" of 
an economic or political nature can be anticipated in the state which 
has taken the economic action. 

In addition to reducing world community interventions by reduc- 
ing the incentive of complainants to invoke world community legal 
procedures, the economic sortie may cushion the impact of any 
interventions which do occur. The policy may be executed before the 
intervention takes place. The sortie will then have to be supported by 
further action (assuming the technique has sustentive range) : and 
the intervention may occur to attenuate the supporting action. How- 
ever, the strategist is forewarned and can modify his successive policy 
to accommodate the legal events or, as suggested in the discussion 



42 

of national legal problems, can seek the legal institutional changes 
necessary to effectuate his policy. 

Summary of Advantages of Economic Sortie 
as Primary Policy Device 

Only the most sanguine student of economic warfare would con- 
clude that preferences for economic sorties will be likely to alter to 
any discernible degree the hostile psychological environment in which 
economic warfare is waged. Joint state action will be as difficult to 
mobilize for economic sorties as for protracted harassment. 

In addition, until economic warfare as a primary policy instrument 
receives the detailed and consistent professional attention devoted to 
military strategy and tactics, the virtues of economic sorties may not 
be recognized by the policy makers of economically powerful states 
of the Free World. These policy makers are predisposed by their 
domestic commercial environment to techniques of protracted 
harassment. 

However, the economic sortie does permit, largely through the 
flexibility of strategy in the legal sphere, the development of speed 
and direction, compensating for the lack of joint action in part, and 
precluding economic reinforcement of the target of attack. The effect 
of offensive economic action is thus enhanced. 

Time is not invariably critical in economic warfare. Indeed, an 
economic warfare strategist, to insure that his policy has the desired 
effect, may have to delay execution of his economic warfare plan to 
bring home to the unperceptive power elite of an adversary the 
nature of the economic coercion contemplated. 

But a power elite so unperceptive is unlikely to pose a serious 
threat to the state of the economic warfare strategist; and a state, 
such as the United States, committed to maintaining Free World 
values, will engage in economic warfare only when these values are 
jeopardized. A realistic economic warfare target for the United 
States will be the perceptive power elite of a dangerous adversary. 
It is against such an elite that speed and direction in economic war- 
fare are important. These can be maximized in the economic sortie. 

In rare cases in which multistate economic warfare as a primary 
policy device can be organized, the advantages of speed and direction 
in the economic sortie are not as significant as when the state of the 
economic warfare strategist acts unilaterally. Nevertheless the force 
and effect of multistate economic warfare will be enhanced when 
the economic sortie is the preferred form of economic action. 

Are the advantages of economic warfare by economic sortie equally 
pronounced when economic warfare is waged to support applications 
of military force? When economic warfare is used in this secondary 



43 

policy role the nature of the military operations will determine the 
form of economic warfare employed. 

Economic Sortie as a Secondary Policy Device 

Postulated future military operations range from a global cata- 
clysm with ultradecisive weapons to limited unconventional military 
efforts of a guerrilla type. General conflicts of the World War I or II 
type are possibilities; and limited conflicts between major powers or 
powers of the second or third category may involve the strategies, 
tactics and weapons familiar in the Korean War. Military activity 
may be concentrated upon land or sea, or in air or space — and 
probably will occur in all of these media. 

With this great variation possible in the nature and form of future 
military conflict, and military institutions and needs determining the 
form and direction of economic warfare as a secondary policy device, 
discussions of economic warfare in future military contexts are 
necessarily speculative. 

If weapons of the types familiar in World Wars I and II dominate 
the battlefields and seas in World War III, military strategies and 
tactics are likely to be similar, and the supporting economic warfare 
probably will be the traditional protracted harassment interspersed 
with economic sorties. It is probable, on the other hand, that the 
ultradecisive weapons, nuclear, bacteriological and chemical, stocked 
in the arsenals of an increasing number of states, and the changed 
strategies and tactics based upon these weapons, will render World 
Wars I and II and Korea the last 20th century demonstrations of 
19th century military skills. 

The increasing use by the Communist world of subversion through 
globally directed unconventional military and guerrilla action, and 
the equally unconventional military assistance programs of the Free 
World developed to preclude this subversion, are dramatic demon- 
strations of the power of unused ultradecisive weapons. The form 
of future wars may be determined by unused weapons available to 
the contestants and not by the weapons actually employed. 

A former member of a board of economic warfare in World War 
II, if recalled to his task in World War III, may find his mission 
different, his techniques unfamiliar and his tenure short. Indeed, 
there may be no need for his services. The maximum destruction with 
minimum effort which can be achieved with nuclear weapons may 
eliminate all economic warfare in a secondary policy role familiar 
in the past. 

But if the adversaries do not join in a global nuclear Armageddon, 
a period of confrontation may ensue in which the participants seek a 
settlement by military means rather than by negotiation. No uncon- 



44 

ditional capitulations might be sought in order to avoid a "last 
ditch" use of ultradecisive weapons by a desperate antagonist at the 
edge of defeat. Under these circumstances, military operations might 
be of a "holding" or stabilizing nature with much emphasis upon 
economic warfare or similar devices to produce the decisions desired. 
Economic warfare may dominate in a primary policy role. Military 
operations may assume secondary importance; as would supporting 
economic measures in this event. 

The economic measures developed to support military "holding" or 
"stabilizing" operations probably would be selected with a view to 
their immediate impact. Time, or the risk of exposure to the use of 
ultradecisive weapons, will be critical. Blockade, for example, would 
be selective rather than general in nature, designed to delay the 
development, production, installation and delivery to target of the 
unused ultradecisive weapons producing the stalemate. The Cuban 
Quarantine of 1962 suggests the form and intensity such interdic- 
tions of critical weapons and materials might take. Because of the 
critical time element, the economic warfare posture, even in a sec- 
ondary policy role, probably would be offensive rather than defensive. 
In this context economic sorties might reasonably be preferred to the 
delays, uncertainties and potential for miscarriage of economic 
warfare by protracted harassment. 

If ultradecisive weapons, particularly nuclear types, are used on a 
limited basis, such as for military tactical purposes, but strategic use 
of these weapons is considered probable by the participants, either on 
a limited or general scale, the nature of economic warfare may differ 
from that in the confrontation in which total defeat of the adversary 
is not an aim. Economic warfare as a secondary policy device would 
be likely to exceed in importance its concomitant use in a primary 
policy role. Protracted harassment would be the prevailing technique 
with enhanced interest in economic sorties for speed, control and 
direction. 

The demands of neutrals for trade and other privileges, to which 
much attention was directed by economic warfare strategists during 
World War II, may be modified profoundly in a nuclear military 
context. The trend is likely to be towards "open" or "effectively 
neutral" states. 

Not only will this simplify the international legal problems of the 
economic warfare strategist, but there may be much "self regulation" 
by the neutrals. An open state is likely to maintain total boycotts 
and embargoes upon trade with belligerents and assiduously police 
the commercial transactions of its nations to avoid identification with 
any combatant. 

Instead of action to interrupt neutral trade, the belligerents might 



45 

encourage it. Discriminations might arise which could not be pre- 
vented effectively by a nonparticipant, the former sanction of 
threatened participation being made too costly by the threat of 
nuclear annihilation. 

Assuming no effort is made by one nuclear antagonist to manipu- 
late the population of the other, neutrals sharing land boundaries 
with belligerents, or those readily accessible by sea or air and which 
also possess food surpluses, may nevertheless become sanctuaries for 
elements of the belligerent noncombatant populations. As hostages, 
these noncombatants will tend to insure the neutral against attack by 
their state of origin. Since all belligerents might reap advantages 
from similar havens, a form of "reciprocity by hostage" might render 
the sanctuaries effectively inviolate. 

Trade in food, medicines and similar civilian items potentially of 
military use might be encouraged among these neutral havens despite 
the risks of military benefit to an antagonist. Rationing or metering 
the trade between neutrals might cease to be of major concern to the 
belligerents. 

On the other hand, those neutrals which either are not sanctuaries 
for noncombatants, or which do not have a geographic position or 
economy potentially qualifying them to perform this function, might 
be subjected to the types of restraints upon neutrals imposed by the 
belligerents during World War II. There would be no effective way 
in which the neutral could prevent this discrimination. 

Efforts might be made to manipulate the population of an adver- 
sary. The enemy population might be induced to concentrate to 
present a remunerative nuclear target. Dispersion might be forced to 
place a burden upon the communications and supply of the adver- 
sary. An effort might be made to panic the adversary population to 
divert the opposing military strength for police or other purposes. 

An example of the latter maneuver is a strategic nuclear feint. If a 
belligerent is prepared to risk a preclusive nuclear strike, it might 
warn the population of its antagonist of nuclear attack on a date and 
place designated, promising immunity to adjacent neutral areas. 
This maneuver would capitalize upon several related factors: (1) 
Lack of defenses to nuclear attack by the adversary; (2) Mobility of 
the population — possession for example of private means of trans- 
portation; (3) Lack of communication between the adversary power 
elite and political mass; (4) Lack of police control; and (5) Sus- 
ceptibility of the population to panic. 

A similar technique has been used anticipatory to bombardment 
with conventional weapons. Unnecessary loss of life was avoided and 
the industrial production, transportation and communications of the 
enemy were disrupted. 



46 

Economic action supporting a strategic nuclear feint would en- 
courage the flow of supplies into adjacent neutral areas, minimize 
the opportunity for transshipment and stockpiling of these supplies 
in the territory of the adversary, and decrease the flow of supplies 
directly to the hostile territory from nonadjacent neutral areas. A 
supply situation would be sought which made the adjacent neutral 
attractive for refuge and precluded the effective care of refugees 
within the hostile territory. Protracted harassment, probably in the 
form of a blockade of food and medical supplies would be imposed 
on hostile ports. Preventing transshipment of these materials im- 
ported into adjacent neutral territory would be most effectively ac- 
complished by economic sorties: decisions not to transship being 
required by the neutral power elite. 

Population concentrations in the territory of the enemy might be 
accomplished by limiting the transport of food and medicines to 
adjacent neutrals and metering the importation of these items into 
hostile territory to create a marginal level of supply requiring close 
central control and a tendency by the enemy population to gravitate 
to these control centers. Blockades, a form of protracted harassment 
imposed upon hostile shorelines, would figure prominently in support 
of this strategy. 

When the military context is dominated by unconventional and 
subversive violence, such as guerrilla warfare which has been an 
important feature in military relations between the Free and Com- 
munist Worlds, economic warfare by protracted harassment, defen- 
sively or offensively, becomes of decreased value. A premium lies in 
careful definition of the critical power elites which are targets for 
economic action and careful assessment of the economic devices likely 
to influence decisions by them. Protracted harassments, such as 
denials or withdrawals of foreign aid, often prejudice stability 
within a state subject to subversive action and contribute to the 
effectiveness of hostile subversive violence. The economic sortie thus 
is likely to play an important role either as a primary or secondary 
policy device in these confrontations. 

It is possible that in many military operations whether one form 
of economic warfare or the other is most effective to support the mili- 
tary action may not be a critical question. The economic warfare 
form selected, for example, may be one enhancing secrecy of the 
military plan. 

Uncertainties concerning the variations in condition and form 
possible in future military warfare; the probability, in fact, that 
strategies and tactics will change in many different aspects in the 
future; must necessarily qualify any judgment that economic war- 
fare by protracted harassment in a military context is obsolete. Since 



47 

diverse requirements, other than simple effectiveness of the action, 
have been imposed upon economic warfare in a secondary policy role 
in the past, one may expect these requirements to be equally diverse 
in the future. 

But if economic warfare by protracted harassment is not fully 
obsolete in a military context as a secondary policy device, protracted 
harassment as a generally employed technique under these circum- 
stances is certainly obsolescent. The patent limitations of economic 
warfare by protracted harassment as a primary policy device, in a 
military context or otherwise, have been fully detailed. The economic 
sortie promises to emerge as an increasingly useful technique in mili- 
tary or nonmilitary contexts. And it is in economic warfare by eco- 
nomic sortie that the knowledge, skills and other resources possessed 
or controlled by naval officers can be used in the national interest 
with maximum advantage. 

B. THE NAVAL DECISION MAKER IN ECONOMIC WARFARE: 
LAWMAKING DURING ADMINISTRATION 

Effective development and implementation of economic warfare 
policies in the future, whether economic warfare techniques are em- 
ployed in a primary or secondary policy role, are likely to depend 
upon the ability of the economic warfare strategist to use law. This 
strategist will often be a naval officer — either making economic war- 
fare decisions or advising others making these decisions. 

An ability to use law consciously and effectively requires recogni- 
tion by the strategist and others who control him that men do use 
law to define ends for action and to attain these ends. Recognition 
is also important that each use of a legal institution necessitates 
reshaping the institution to a degree conducive to attaining the end 
and fitting the new factual context in which the institution is ap- 
plied. Conversely, the degree of deviation from past ends or goals and 
the degree of change in the factual and intellectual context in which 
the policy is formulated and applied determines the degree of reshap- 
ing of the legal institution necessary to effect the policy. New "law" 
is made as old "law" is administered. 

But in this concentration upon the engineering or operational 
features of "lawmaking," the strategist must not ignore the seismic 
changes in human relations which changes in legal institutions pro- 
duce. Each legal change sets in motion a complex vibration of ele- 
ments in human relations. These may range from those substantially 
undetectable to those that are catastrophic. The economic warfare 
strategist should foresee and weigh the importance of these shifts. 

To introduce the kinds of problems faced by a legal strategist in 



48 

economic warfare, two cases will be presented, analyzed and com- 
pared. Both of the cases arose a few months apart in the early days 
of the American Civil War. Novel fact situations were boiling up 
from the breach in the country as never before in American history. 
Problems of a complexity unparalleled until the present decade were 
being presented for decision. 

In one case, the use of law — by a General — accomplished his eco- 
nomic warfare object. The persons affected accepted his use of law 
with varying degrees of grace. His theory was thoroughly discredited 
before the Civil War was over. But this was not until the aim of the 
General had been achieved. Indeed, his legal strategy succeeded be- 
yond his wildest expectations. 

In the second case, the use of law by a Naval Captain failed of 
acceptance at the time — as did his economic warfare effort. The 
Captain was well ahead of his day. The law he tried to make may be 
the law currently. But impact upon the present, rather than upon the 
future, is the aim of the legal strategist. He does not seek to erect a 
legal pyramid to endure forever. He merely designs and lays the 
sturdy legal foundation for a temporary structure. 

1. Butler's Law of Contraband 

On the day Virginia seceded from the Union in 1861, three escaped 
slaves came within the lines of Union Major General B. F. Butler 
at Fort Monroe. The slaves belonged to Colonel Mallory, Confederate 
commander at Hampton. They had been used before their escape to 
construct a battery at Sewall's Point. 

General Butler was not a professional soldier. In his short active 
service prior to secession, he had been noted for his innocence both of 
the complexities of military science and tactics and of the require- 
ments of Army Regulations. But for dealing with the legal com- 
plexities of slavery, he had been well trained in the rough and tumble 
of the hustings in Lowell, Massachusetts, where he had practiced 
law and been active in politics before achieving military high 
command. 

Thus, when Major Carey, commander of the Confederate picket at 
Hampton, came under a flag of truce to retrieve the fugitives, Butler 
was amply prepared to receive him. Assisting slaves to escape was a 
felony under the Fugitive Slave Law. 22 But Butler had no intention 
of returning the escapees. He later described his discourse with Major 
Carey as follows : ** 



22 9 Stat. 462 (1850). The penalty for abetting the escape of a slave or with- 
holding custody from his master was a fine not to exceed $1,000 and imprison- 
ment not to exceed six months. 

23 Butler, Butler's Book, 257 (1892). 



49 

(Carey) Do you mean to set aside your constitutional obligation 
to return them ? 

(Butler) I mean to take Virginia at her word in the ordinance 
of secession passed yesterday. I am under no constitutional obli- 
gation to a foreign country as Virginia claims to be. 
(Carey) But you say we cannot secede, so you cannot consistently 
claim the negroes. 

(Butler) But you say you have seceded, so you cannot con- 
sistently claim them. I shall hold these negroes as contraband of 
war, since they are engaged in the construction of your battery 
and are claimed as your property. The question is simply whether 
they shall be used for or against the Government of the United 
States. * * * 

After Butler and Carey parted, Butler returned to his quarters, 
and as he walked along with a member of his staff, he stated : 24 
* * * /T/he correctness of my law was discussed by Major 
Haggerty, who was, for a young man, a very good lawyer. He 
said he doubted somewhat upon the law, and asked me if I knew 
of that proposition having been laid down in any treatise on 
international law. 

'Not the precise proposition,' said I, 'but the precise principle 
is familiar law. Property of whatever nature, used or capable of 
being used for warlike purposes, and especially when being so 
used, may be captured and held either on sea or on shore as 
property contraband of war. Whether there may be a property 
in human beings is a question upon which some of us might 
doubt, but the rebels cannot take the negative. At any rate, 
Haggerty, it is a good enough reason to stop the rebels' mouths 
with, especially as I should have held these negroes anyway'. * * * 
When noised abroad, Butler's decision caused a mass exodus of 
slaves to Fort Monroe. There Butler promptly put them to work and 
appointed a "Commissioner of Negro Affairs" to supervise them. He 
then reported his action to Lieutenant General Scott with a duplicate 
of his letter to the Secretary of War. 

General Scott was apparently shocked into silence. The Secretary 
of War responded with "no directions to pursue any different course 
of action from that which I had reported to him, except that I was 
to keep an accurate account of the value of their work." 25 

Eeflecting upon his use of lav/, which was received rather frigidly 
in 1861 by all except the slaves, Butler stated many years later : 26 



24 Ibid., 258. 

25 Ibid., 259. 

26 Ibid., 259. 



50 

* * * Our troops could not act as a marshal's posse in catching 
runaway negroes to return them to their masters who were fight- 
ing us at the same time. What ought to be done? Nobody made 
answer to that question. Fortuitously it was thrust upon me to 
decide what must be done then and there, and very fortunately 
a few minutes' thought caused to flash through my mind the 
plausible answer at least to the question : What will you do ? 
I do not claim for the phrase 'contraband of war,' used in this 
connection, the highest legal sanction, because it would not apply 
to property used or property for use in war, as would a cargo of 
coal being carried to be burned on board an enemy's ship of war. 
To hold that contraband, as well might be done, by no means 
included all the coal in the country. It was a poor phrase enough ; 
Wendell Phillips said 'a bad one'. My staff officer, Major 
Winthrop, insisted it was an epigram which freed the slaves. 
The truth is, as a lawyer I was never very proud of it, but as an 
executive officer, I was much comforted with it as a means of 
doing my duty. 

With allowances for inaccuracies in General Butler's second 
thoughts after thirty years, his formulation of "contraband" as ap- 
plied to slaves was an economic warfare measure second in importance 
only to the declaration of blockade by the Union. It was the touch- 
stone by which the Confederate labor force was lured away in the 
eighteen months preceding the Emancipation Proclamation. During 
this period, Union military and naval power was at its nadir. Butler's 
economic warfare served in part to counterbalance the superior Con- 
federate leadership and fighting qualities until Union military power 
was fully mobilized. 27 

2. Wilkes and The Trent 

At the time General Butler was employing the slaves of Colonel 
Mallory at Fort Monroe, U.S.S. San Jacinto, Lieutenant D. M. Fair- 



27 Bruce Catton, appraising General Butler's use of law a century later, sees 
effects in his decision beyond the prosaic margin of economic duress. He writes : 
* * * Meanwhile, other men would have their say. One of them was Ben 
Butler, of Massachusetts, a man seemingly appointed now, in the infinite 
Providence of God, to cast his own strange ray of revealing light on the 
way the war must go. To the relief of everyone, Butler had been lifted out 
of Maryland and had been set down by the Federal War Department, at 
Fort Monroe, at the tip of the Virginia Peninsula. Here, trying to be an 
administrator and a warrior, succeeding imperfectly in each, he would 
bring up for definition the thing both sides did not want mentioned just 
now — the deep underlying wrong of slavery. Meaning nothing more than 
a good lawyer's shrewdness, he helped to define the war. * * *. Catton, 
The Coming Fury, 394 (1961). 



51 

fax commanding, was cruising the West Coast of Africa on the hunt 
for slavers. 28 Captain Charles Wilkes, a veteran officer, explorer of 
the Antarctic, pacifier of the Fijis, discoverer of Wake Island, a 
scientist of great merit who prepared charts later used by the United 
States Navy in the South Pacific in World War II, but withal a 
brilliant enigma, assumed command of San Jacinto in August. His 
orders were to return to the United States to participate in the 
DuPont Expedition against Port Koyal. 29 The attack upon Port 
Royal was scheduled for November 4, 1861. 

Delaying his return in a fruitless search for the Confederate 
cruiser Sumter, Wilkes touched at Cienfuegos, Cuba. There he 
learned from a newspaper that Mason and Slidell, Confederate Com- 
missioners, had reached Havana by blockade runner. 

Hastening to Havana to capture the blockade runner on its return, 
but arriving too late, Wilkes nevertheless discovered through the 
agency of Lieutenant Fairfax, now his executive officer, who talked 
to Mason in a Havana hotel, that the Commissioners, their secretaries 
and families, were to sail on the British steamer Trent on Novem- 
ber 4, 1861, for St. Thomas en route to Europe. Mason, posted to 
England, and Slidell, posted to France, were to negotiate for recog- 
nition of the Confederacy. 

In his report to Secretary of the Navy Welles, made on 16 Novem- 

28 Lieutenant Fairfax was a Virginian who had been appointed a midshipman 
from North Carolina. He had taken part in the capture of Lower California 
during the Mexican War. At the Trent incident Lieutenant Fairfax was forty 
years old and had been a Lieutenant since 1851. 

His subsequent service for the Union was highly distinguished. He was in 
command of Cayuga with Farragut at New Orleans in 1862 and commanded 
the monitor Nantucket in DuPont's attack on Charleston in 1863. Fairfax be- 
came a Rear Admiral after the war. He died in 1894. 

29 For a biography of Wilkes, see Henderson, The Hidden Coasts (1953). 
Although his failure to report for the DuPont Expedition against Port Royal 
is puzzling, Wilkes has been handled with unnecessary roughness for his part 
in the Trent affair. This stems in part from the scathing indictment of his con- 
duct by Admiral Porter in his Naval History of the Civil War, 63 et seq. 
(1886), and critical comments by Professor Soley in The Blockade and The 
Cruisers, 176 et seq. (1890). 

Correspondence and reports filed concerning the Trent may be found in 
Official Records of the Union and Confederate Navies in the War of the Re- 
bellion, Series 1, Volume 1, 129 et seq. (1894), referred to hereafter as Official 
Records. Additional correspondence may be found in Harris, The Trent Affair 
(1896). 

A recent and lively account of the incident may be found in I Jones, The 
Civil War at Sea, 292 et seq. (1960). Jones states a search was made for 
dispatches on the Trent. This was not the case, there being no examination 
even of the baggage of the Commissioners until they arrived in Boston. Their 
baggage was then examined by orders of Colonel Dimick at Fort Warren. 



52 

ber 1861, Captain Wilkes stated the process by which he arrived at 
his decision to seize the Commissioners : 30 

* * * When I heard at Cienfuegos, on the south side of Cuba, 
of these commissioners having landed on the island of Cuba, and 
that they were at the Havannah, and would depart in the English 
steamer on the 7th of November, I determined to intercept them, 
and carefully examined all the authorities on international law 
to which I had access, viz, Kent, Wheaton, Vattel, besides vari- 
ous decisions of Sir William Scott and other judges of the 
admiralty court of Great Britain, which bore upon the rights of 
neutrals and their responsibilities. 

The governments of Great Britain, France and Spain having 
issued proclamations that the Confederate States were viewed, 
considered and treated as belligerents, and knowing that the 
ports of Great Britain, France, Spain and Holland in the West 
Indies were open to their vessels, and they were admitted to all 
the courtesies and protection vessels of the United States re- 
ceived, every aid and attention being given them, proved clearly 
that they acted under this view and decision, and brought them 
within the international law of search and under the responsibili- 
ties. I therefore felt no hesitation in boarding and searching all 
vessels of whatever nation I fell in with, and have done so. 

The question arose in my mind whether I had the right to 
capture the persons of these commissioners, whether they were 
amenable to capture. There was no doubt I had the right to 
capture vessels with written dispatches; they were expressly re- 
ferred to in all authorities, subjecting the vessel to seizure and 
condemnation if the captain of the vessel had knowledge of their 
being on board, but these gentlemen were not dispatches in the 
literal sense, and did not seem to come under that designation, 
and nowhere could I find a case in point. That they were com- 
missioners, I had ample proof from their own avowal, and bent 
on mischievous and traitorous errands against our country, to 
overthrow its institutions and enter into treaties and alliances 
with foreign states, expressly forbidden by the Constitution. * * * 

I then considered them as the embodiment of dispatches, and 
as they had openly declared themselves as charged with all 
authority from the Confederate Government to form treaties 
and alliances tending to the establishment of their independence, 
I became satisfied that their mission was adverse and criminal 
to the Union, and it therefore became my duty to arrest their 
progress and capture them, if they had no passports or papers 



30 Official Records, 143. 



53 

from the Federal Government, as provided for under the law of 
nations, viz, that foreign ministers of a belligerent on board of 
neutral ships are required to possess papers from the other 
belligerent to permit them to pass free. * * * 

Wilkes did not disclose his plan to any of his officers until San 
Jacinto sailed from Havana on November 2. He then disclosed his 
plan to Lieutenant Fairfax. Many years later, Lieutenant Fairfax 
wrote : 31 

When Captain Wilkes first took me into his confidence, and 
told me what he proposed to do, I earnestly reminded him of the 
great risk of war with these two governments, supported as they 
were by powerful navies. * * * 

On November 3, Wilkes put into Key West, searching for other 
vessels which might aid him in intercepting Trent. Fairfax there 
suggested he consult with Judge Marvin, United States District 
Judge in Key West, "one of the ablest maritime lawyers," but Fair- 
fax noted : 32 

* * * I soon saw * * * that he had made up his mind to inter- 
cept and capture the Trent as well as to take possession of the 
Commissioners, and I therefore ceased to discuss the matter. * * * 
Wilkes then took station in the old Bahama channel and inter- 
cepted Trent on November 8. Fairfax writes : 33 

* * * As the next in rank to Captain Wilkes, I claimed the 
right to board the mail packet. Captain Wilkes fully expected 
that I would tender my services for this 'delicate duty' and 
rather left to me the plan for carrying out his instructions. * * * 
The instructions issued to Lieutenant Fairfax were in part : 34 

* * * You will have the second and third cutters of this ship 
fully manned and armed, and be in all respects prepared to 
board the steamer Trent, now hove to under our guns. On board- 
ing her you will demand the papers of the steamer, her clearance 
from Havana, with the list of passengers and crew. Should 
Mr. Mason, Mr. Slidell, Mr. Eustis, and Mr. Macfarland be on 
board, you will take them prisoners and send them on board this 
ship immediately, and take possession of her as a prize. I do not 
deem it will be necessary to use force, that the prisoners will 
have the good sense to avoid any necessity for using it, but if 
they should, they must be made to understand that it is their 
own fault. They must be brought on board. 

All trunks, cases, packages and bags belonging to them you 

31 II Battles and Leaders of the Civil War, 136 (1884). 

32 II Battles and Leaders of the Civil War, 135, 136 (1884). 

33 Ibid., 136. 

34 Official Records, 131. 



54 

will take possession of, and send on board this ship. Any dis- 
patches found on the persons of the prisoners, or in possession 
of those on board the steamer, will be taken possession of also, 
examined and retained if necessary. * * * 
But Fairfax states he decided : 35 

* * * /N/ot to do anything unnecessary in the arrest of these 
gentlemen, or anything that would irritate the Captain of the 
Trent, or any of his passengers, particularly the commissioners — 
lest it occur to them to throw the steamer on my hands, which 
would necessitate my taking her as a prize. * * * 

When he boarded Trent, and arrested Mason and Slidell and their 
secretaries, Lieutenant Fairfax acted tactfully and with forebearance. 
His forebearance was such that he neither insisted upon examining 
the papers and passenger list of the vessel, when the master refused 
his request, nor did he conduct a search for dispatches. Dispatches in 
fact were on board and were delivered ultimately in England by a 
Confederate agent. So great was the disorder among the passengers 
on Trent and so uncooperative were the attitudes of her officers that 
Fairfax was relieved to be able to remove the commissioners, their 
secretaries and their baggage without physical violence. 

When he returned to San Jacinto Lieutenant Fairfax reported to 
Captain Wilkes that he : 36 

* * * /H/ad not taken the Trent as a prize, as he had instructed 
me to do, giving certain reasons which satisfied him; for he 
replied, 'inasmuch as you have not taken her, you will let her go' 
or 'proceed on her voyage'. To make clear one of these reasons, 
I should before have mentioned that Captain Wilkes, while at 
Havana, had learned more definitely of DuPont's fleet, from 
which he inferred its destination, for of the Southern ports the 
larger vessels could only enter Port Royal. He directed me 'to 
refit our battery and get the San Jacinto ready in all respects 
for battle' adding that he would 'join DuPont in time to co- 
operate with him'. (As it was, Port Royal fell the day before 
we boarded the Trent, as we learned on our arrival off 
Charleston.) 

The reasons I assigned to Captain Wilkes for my action were : 
First, that the capture of the Trent would make it necessary to 
put a large prize crew (officers and men) on board, and thus 
materially weaken our battery for use at Port Royal; secondly, 
that as there were a large number of women and children and 
mails and specie bound to various ports, the capture would 



35 II Battles and Leaders of the Civil War, 135, 136 (1884) 
36 Ibid., 140. 



55 

seriously inconvenience innocent persons and merchants; so that 
I had determined before taking her to lay this matter before 
him for serious consideration. 

I returned immediately to the Trent and informed Captain 
Moir that Captain Wilkes would no longer detain him and he 
might proceed on his voyage. 
Fairfax added : 37 

I gave my real reasons some weeks afterward to Secretary 
Chase, whom I met by chanCe at the Treasury Department, he 
having asked me why I did not obey Captain Wilkes' instruc- 
tions. I told him it was because I was impressed with England's 
sympathy for the South, and felt she would be glad to have so 
good a ground to declare war against the United States. 
When the Commissioners were taken, the military fortunes of the 
Union were at a low ebb. The need in the North for a hero was great. 
Captain Wilkes promptly received public acclaim. But his fall from 
official grace, if not in public exaltation, was rapid when the Trent 
affair received a second look. 

Secretary Welles was mildly reserved and apprehensive from the 
beginning. Montgomery Blair sourly suggested that Wilkes be re- 
quired to transport the Commissioners to England. Secretary 
Seward wrote the United States Ambassador at the Court of 
St. James that Wilkes had seized the passengers without instructions 
and the matter had not been discussed in the Cabinet. 

European lawyers regarded seizure of the Commissioners as a vio- 
lation of international law. The British, without waiting for diplo- 
matic adjustment, commenced preparations for war. 

Secretary Seward, in December, stated to the British that Wilkes 
had acted without orders and had erred in failing to bring the Trent 
in for adjudication. The Commissioners and their secretaries were 
released with their baggage, delivered to a British vessel, and con- 
tinued their missions. 38 

An emotional atmosphere which eased the labors of Confederate 
supply agents developed in both England and France. The anti- 
slavery bias of the European bourgeois was counteracted to a degree 
by concern over Wilkes' apparent adaptation of the high-handed 
British treatment of neutral shipping. 

Hiding a wave of popular acclaim, Wilkes obtained a promotion 
and command of the James River Flotilla. Shortly thereafter he 
ended his naval career in command of the West Indies Squadron, 



87 Idem, 40, fn. 

38 A discussion of the efforts of Mason and Slidell upon reaching their posts 
may be found in Owsley, King Cotton Diplomacy, 224 et seq. (1931). 



56 

being harried down in 1863 by the British and relieved from com- 
mand for diplomatic reasons. 

3. Lawmaking by Butler and Wilkes Compared 

Unlike the law made by Butler, which proved effective economic 
warfare for the Union, the law made by Captain Wilkes was ap- 
plauded in the North but then repudiated by his contemporaries. His 
seizure of Trent did nothing to advance the political cause of the 
Union. Why did one decision serve the cause supported and the other 
not? 

Butler was using law from the time he started speculating upon 
alternatives open for the disposition of Colonel Mallory's slaves. He 
appraised instinctively the competing interests involved and con- 
sidered how his possible decisions might be received by the persons 
affected. 

Colonel Mallory could not sue Butler in a Northern Court. He 
might sue in a Southern Court if Butler were captured, if the Con- 
federacy won, or if the slaves were not emancipated. These possibili- 
ties seemed comfortably remote. 39 

No foreign owners were involved. Although Colonel Mallory 
might be considered a foreign owner, there was no chance that his 
claim might be adjudicated before an international tribunal or that 
he could persuade England, France or some other third state to 
espouse his claim. 

Butler may have committed a felony under Federal Law by refus- 
ing to return the slaves. But this was a matter of interpretation of 
the Fugitive Slave Law, which did not cover specifically the case of 
"contraband" slaves. The United States Attorney General was not 
likely to prosecute Butler for a violation of the law in any event. 
The Fugitive Slave Law was a "Southern" Jaw and unenforcible in 
the North in 1861. Butler, a senior Major General and a prominent 
Massachusetts Democrat to boot, was hardly a target for a Republi- 
can Attorney General at a time when the Republicans were seeking 
Northern Democratic support. 

Judicial review of his action being unlikely, Butler's only concern 
was with administrative review by his superiors. This review might 
be sought by the Confederates, on the theory Butler had violated 
the rules of land warfare by taking private property, or perhaps by 
antislavery or proslavery elements in the North disapproving his 
decision. 



39 Butler was sued after the war for a number of actions taken during his 
command at New Orleans, including looting the sword of General Twiggs. He 
defended these actions successfully. 



57 

Quite clearly he would have administrative problems if he gave 
the fugitives back; and would have political problems, as well, if he 
ran for postwar office in Massachusetts. He thus decided to retain 
the slaves and probed for doctrine upon which to rest his case. 

Butler exaggerates when he suggests in his memoir that the "con- 
traband" analogy simply popped into his mind during his argument 
with Major Carey. The Confederates treated slaves as property for 
some purposes and not for others. A slave was property and could 
be transferred. But a slave was counted as a person for apportioning 
Congressmen. 

These and other inconsistencies in the slave law had been pub- 
licized before the war. Butler simply played upon the fact that this 
inconsistency had progressed to the margin of logical tolerance. 

Contraband, then and now, is limited to property. If the Con- 
federates contended the slaves were not contraband, an inference 
might be drawn that the slaves were not property, since Butler could 
prove hostile use if not interception during carriage. 

Too many distinctions concerning the legal status of slaves had 
been made before 1861. Few officials, North or South, other than 
Butler, were prepared to "rock the boat." His formula effectively, as 
Butler crudely put it, "stopped the rebels' mouths." 

Butler might have called "a spade a spade" and declared the slaves 
captured public property, like captured pieces of artillery. They had 
been converted to the public use of the Confederacy for work upon 
fortifications. But the United States might find itself with title. This 
would be embarrassing. 

If Butler declared the slaves captured private property, the United 
States might have to offer indemnity to their owner after the war. 
About thirty years before the United States had argued successfully 
before the Tsar of Kussia as arbitrator that England was liable for 
slaves carried away during the War of 1812. 

"Contraband" was a happy inaccuracy. Title to the slaves was left 
in suspense. The abolitionists (other than Wendell Phillips) tem- 
porarily were satisfied in Butler's Massachusetts constituency. Offi- 
cials in Washington, yet unready to emancipate the slaves, were 
mollified. The rebels' "mouths were stopped." Butler's retention of 
the slaves for work at Fort Monroe and a program of further 
attrition of the Confederate labor force were justified. 

His allegedly ad hoc formula, although unsound analytically, and 
given harsh treatment by legal scholars since, worked admirably as 
an acceptable fiction until emancipation. This occurred within 
eighteen months. Although Butler's formula was then obsolete, it 
stands as his most enduring monument. 

No one can say with assurance today why Captain Wilkes felt 



58 

bound to seize the Commissioners on the Trent when he should have 
been on his way instead to join the DuPont Expedition. Some writers 
have suggested he sought an opportunity for a dramatic act before 
his retirement, which he then believed was pending. Quite possibly 
his decision was conditioned by an element of Anglophobia, shared 
by many American naval officers of his generation, and sharpened 
both by his disputes with Ross concerning their conflicting claims to 
discoveries in the Antarctic and by his kinship with John Wilkes, 
the persecuted British editor. 40 His boyhood friendship with Slidell, 
superseded by frigidity as the prospect of secession loomed, may have 
had some bearing. 

But clearly Captain Wilkes, unlike General Butler, had no feel 
for the way in which law worked or for the dimensions of the politi- 
cal context in which his decision was made. This was not his fault. 
He was a naval officer and scientist — not a lawyer. Commanders 
afloat at the time the Commissioners were seized had no instructions 
by the Navy Department concerning neutral rights. 

The Secretary of the Navy could not, of course, have foreseen the 
necessity of haste to convey such instructions to Wilkes. He believed 
Wilkes was joining the DuPont Expedition and not on a junket of 
his own, pursuing British packets. 

Wilkes could not reasonably consult with Judge Marvin as Lieu- 
tenant Fairfax suggested. Judge Marvin would be judge of the prize 
court before which Trent would be brought if seized. If Judge 
Marvin disqualified himself, Trent would have to be carried by its 
prize crew to a less convenient port. 

As Wilkes saw the matter, law was an obstacle standing between 
him and the Commissioners. If he could find a hole through this 
obstacle, like a break in the pack ice through which he drove his 
wooden ships in his exploring days in Antarctica, he could pass 
through and seize the Commissioners. 

He found this hole in the treatment of dispatches by Sir William 
Scott. But instead of seeking a principle underlying Scott's decisions, 
as Butler probably would have done, Wilkes worked solely by factual 
analogy, identifying written dispatches with dispatches borne in the 
cortical processes of the Commissioners. 

This was a bold scientific approach to the matter; but one which 
would have had more appeal in 1961 than in 1861. Furthermore, 
Wilkes seemingly gave no consideration at any stage of the transac- 



40 John Wilkes, great uncle of the Captain, was editor and owner of the news- 
paper, The North Briton. Wilkes was imprisoned in 1763 for a libel upon 
George III and became both odious to the monarchists and a hero in the 
colonies. Wilkes-Barre, Pennsylvania is named for Wilkes and Issac Barre\ his 
contemporary in Parliament who also supported colonial claims. 



59 

tion to the possible responses of persons with interests in the conflict 
to his interception and treatment of Trent, her crew and passengers. 

The matter, as Wilkes saw it, was one between the authorities on 
international law which he consulted and his conscience as a patriot. 
When these could be reconciled, he regarded his legal problem as 
settled. He viewed law as an obstacle and legal skill as a tool to force 
an entrance. He failed to recognize a problem in "legal strategy" or 
management — and this problem as a continuing one, not to be solved 
by any single decision. 

His decision to intercept Trent required more than a single mental 
act. Wilkes should also have set the factual matrix for authoritative 
decisions by others and been prepared to persuade others to accept 
his treatment of the facts. 

Setting this factual matrix required his careful supervision of 
Lieutenant Fairfax, his boarding officer. Fairfax, a seasoned officer, 
was an aggressive advisor. Wilkes should have recognized that Fair- 
fax was seeking to impose his own policy upon his commander by 
setting his own factual matrix. If Fairfax failed to inspect Trent for 
dispatches and contraband items and failed to seize Trent when the 
Commissioners were discovered on board, Wilkes should have ordered 
him back with the force to do these things. 

The requirement under the circumstances for an adjudication was 
also clear. Wilkes' failure to go beyond a simple factual analogy in 
making his decision — his failure to analyze even the interests involved 
in the confrontation — could have been compensated to a degree by 
review of the facts by an impartial judge. In 1861, this required 
seizure of Trent and her diversion to Key West, or some other 
port, where the propriety of the interdiction could be passed upon 
by a judge having admiralty jurisdiction. 

Wilkes had directed Fairfax to seize Trent. But his failure to 
insist upon compliance with his order meant that Fairfax, who 
either misunderstood or disapproved the treatment of law by Wilkes, 
set a factual matrix placing Wilkes and his superiors in an unten- 
able position. 41 

4. The Naval Officer and Legal Strategy in Economic Warfare 

A naval officer may participate in legal strategy in economic war- 
fare in a context other than that illustrated by Wilkes' interception 
of Trent. He may, for example, participate in "lawmaking" on a 
formal level. 



41 It has been argued that war with England was avoided by the Union 
because Trent was not seized and diverted. An adjudication, however, would 
have provided a quick settlement of the issues and one probably satisfactory 
both to the Union and England. 



60 

The officer may serve as a member of a court or commission deal- 
ing with a narrow issue produced by economic warfare. He may 
serve as a delegate to an international convention considering legal 
problems produced by economic warfare in a broader perspective. 

Usually, however, the naval officer's function in lawmaking on a 
"formal" level will be indirect or advisory. Thus, he may testify 
before a Congressional Committee which seeks to define an economic 
warfare problem and devise legislation to be used in an effort to solve 
it. His experience with similar problems and ways to solve them 
may be reflected in the report of the Committee and ultimately 
influence laws passed by the Congress. 

In his appearances as a witness before Courts, the ability of a 
naval officer to influence the development of law relating to economic 
warfare is appreciably less than before legislative Committees. Not 
only are the issues before Courts typically narrow, but rules of evi- 
dence and limitations upon the lawmaking functions of a Court may 
limit the ability of the officer to express his views freely. His judicial 
influence thus tends to be negative. 

In the Corfu Channel Case, for example, the refusal of a British 
naval witness to divulge the contents of British secret Order XCU 
may have prevented the International Court of Justice from intro- 
ducing into international law the civil law doctrine of "misuse of a 
right." This doctrine was discussed in the dissenting opinion of 
Judge Alvarez. 42 "Negative influence" is an important function in 
the preformulatory stage of lawmaking. At this stage poor or un- 
workable policies can be stifled at birth. 

But while lawmaking through administration is the most impor- 
tant and obvious way in which a naval officer may become involved 
in legal strategy in economic warfare, this area of legal activity, 
paradoxically, has been the most difficult for military officers and 
their civilian superiors to comprehend and appreciate. In dealing 
with Trent, Captain Wilkes and Lieutenant Fairfax sensed this law- 
making function only dimly. Not many military officers of their day 
possessed the flair for management of law and flawless effrontery 
which served General B. F. Butler well in many trying situations. 

It has been pointed out hitherto in this Chapter that certain 
advantages stem from the use of economic sorties as preferred eco- 
nomic warfare techniques. Economic sorties also are managed most 
readily at low policy-making levels. 

One reason for this flexibility at low policy levels is that legal 



42 I.C.J. Rep., 1949, Judgment of April 9, 1949 (Merits) 48. "* * * /I/n 
virtue of the law of social interdependence * * * misuse of a right should be 
transported into international law." 



61 

doctrine, much of it having been developed in defensive economic 
warfare and thus not amenable to ready use in offense, becomes in- 
creasingly difficult to relate to any policy process as the facts of a 
specific conflict are approached. The lower the policy level of the 
administrator, the greater his independence to take immediate action 
to deal with facts confronting him. 

But while this "low level' 1 administrator can take immediate ac- 
tion, which policy makers on high levels may be unable to do with 
equal speed, he bears the burden of limited factual perspective. He 
has difficulty, for example, in relating the action which he under- 
takes with other action planned or undertaken at the same time. 

It is not enough for him to assume that current national legal 
doctrine or international legal doctrine is keyed to economic warfare 
by protracted harassment; and that economic sorties, by presenting 
situations to which the existing legal doctrine is inapposite, will give 
him freedom of action. He will find, instead, that legal institutions 
are being used at various levels of authority to coordinate action, 
persuade allies and adversaries, and guide subordinates; and, in this 
process, legal doctrine (or formal statements of authoritative policy) 
are being formulated, revised and abandoned constantly. 

Thus, while a naval officer at a relatively low policy-making level 
may enjoy some freedom of action through the employment of eco- 
nomic sorties, his skill in the use of law to persuade his superiors 
and adversaries to accept his economic action also plays a vital role. 
Likewise, it is incumbent upon his superiors to ensure that the "low 
level" policy maker in immediate contact with the conflict events 
has adequate intelligence of plans and concomitant action to permit 
his rational choice of economic warfare alternatives. 

The "low level" policy maker, the usual policy position of a naval 
officer engaging in economic warfare, finds himself pushed towards 
legal strategy of a defensive nature. He has much latitude for initia- 
tive but must be prepared to defend the economic action which he 
undertakes. He becomes a lawmaker to the extent his action is ac- 
cepted by those who can make authoritative decisions concerning the 
conflict. The naval officer is a decision maker — but seldom does he 
make final decisions. This Wilkes forgot and Butler remembered. 

What are the basic features of this administrative process in eco- 
nomic warfare? What are the principal problems of persuasion con- 
fronting a naval officer discharging economic warfare duties? 

The Administration of Economic Warfare Policies 

The policies which a naval officer will have to apply or consider in 
conducting economic warfare, whether these are described as "poli- 
cies," "laws," "directives" or "orders," may be viewed functionally as 



62 

"activating," "limiting" or "deactivating." This functional descrip- 
tion is meaningful only if "laws," "orders," or whatever level of 
authoritative decision making is chosen, are accepted as elements of 
a process for political management. 

"Lawmaking," for example, describes an "endless chain" of inter- 
related decisions within a group sufficiently matured to have de- 
veloped a "formal authority" or "official decision issuing" institution. 
The chain is endless because the effects of executing a "legal policy" 
influence its appraisal and reformulation. 

An "activating" law is one directing someone to do something. The 
actor is sometimes implied in the law and not expressed. For exam- 
ple, a law may state simply that if "X" does act "A," "B" and "C" 
in a particular relationship, "X" will receive a specified punishment. 
The policemen, magistrates, jailors, judges, and perhaps executioners, 
who administer the law are not specified. 

On the other hand, judgments by these unmentioned persons con- 
cerning the wisdom of "activating" law and what the formal "law- 
maker" intended, will condition whether a particular person in the 
community is brought under the description "X" (whether the "law" 
applies to him) or whether he is found to have done "A," "B" and 
"C" in the particular relationship required. The Bourbon law of 
treason was not in fact applied to Marshal Ney if his firing squad, 
through affection for him, agreed not to shoot him and permitted 
him to escape. 

However, an activating law may designate an actor but not direct 
clearly what he is to do. Instead, the law may prescribe a general 
course of action. 

This situation usually occurs when the "formal" lawmaker ap- 
praises the facts of a problem as too complicated or changing too 
rapidly to be handled by a detailed prescription of action. It is with 
reference to this type of "activating" law that "limiting" laws are 
of great importance. 

A "limiting" law is one defining allocations of power. These, 
typically, are found in national or state constitutions and in charters 
of international organizations. "Limiting" laws are characterized by 
generalized and long-range goals, such as those expressed in the 
Tenth Amendment of the Federal Constitution. As the policy level 
approaches the conflict events, formal allocations of power, especially 
those based on legislative, judicial or executive functions, tend to 
coalesce. As applied to "activating" laws setting forth general 
prescriptions of action in complicated factual contexts, a "limiting" 
law may require ascertainable standards to guide the administrator. 
However, the more complicated the factual context and the closer the 



63 

policy maker to the conflict events, the less detailed the "limiting" 
standard required. 

"Deactivating" laws are those which bring obsolete, unused or 
unwanted laws to an end. Terminating policy is one of the chronic 
and most difficult problems facing any community. It is not difficult 
to end obsolete or unused laws. But when an unwanted law is ended, 
which is neither obsolete nor unused, supporting conduct patterns 
may have been built around the law and these conduct patterns 
continue. 

An alternative approach in terminating policy is to repeal by 
accretion through administrative interpretation. The law is gradu- 
ally chipped away through failures to apply it or by applications 
unintended by the lawmaker. The supporting custom may then 
change gradually to conform to this changed use of law. 

A naval officer conducting economic warfare usually will adminis- 
ter an "activating" law or order describing him and his colleagues 
as "actors" but not describing in detail the things to be done. In 
operations deemed by the President to be critical to National 
Security, such as the Cuban Quarantine of 1962, tightly centralized 
and detailed control may be exercised. However, this centralized and 
detailed control is unusual. 

In typical naval economic warfare, the President might direct by 
executive order the naval blockade of a designated coastline. The 
time for commencement of the blockade will probably be indicated 
in the order by the President and other details perhaps set forth. 

Within the naval establishment blockade instructions are either 
then prepared or prepared instructions are modified to apply to the 
facts of the conflict. These instructions will contain more detail than 
the executive order and are based upon forecasts of probable events. 

The Fleet Commander charged with conduct of the blockade then 
issues these instructions, probably with elaborating detail, to his 
subordinate commands. By the time the instructions reach the cap- 
tain of a blockading vessel or the commander of a blockading air- 
craft, the provisions will appear in two forms. 

Stereotypes in Administrative Instructions 

One form confers broad discretion upon the instructed officer. The 
framer of instructions cannot foresee with assurance events which 
might confront the administrator. A precise directive might be obso- 
lete when formulated. The officer, consequently, must be given lati- 
tude for action. The provision is similar to an "activating law" which 
describes the actor and objective of action but does not direct in 
detail what the actor is to do. 



64 

A second form describes the action to be undertaken and the condi- 
tions for action. While the actor or actors may not be described 
precisely, as in some "activating laws," the lower the administrative 
level at which instructions issue, the greater the likelihood and neces- 
sity of exact description. 

Provisions may be found conforming precisely to neither of these 
stereotypes. Indeed, as did Captain Wilkes in his interception of 
Trent, an officer may deem it necessary to act without instructions. 

But if instructions issue, are received and followed, the distinction 
between stereotypes is relevant to "lawmaking" functions the ad- 
ministrative officer probably will perform. These "lawmaking" func- 
tions, in turn, shape problems of persuasion which must be solved to 
obtain formal community responses favorable to the coercive eco- 
nomic measure. 

The lawmaking function of the officer may be principally "legis- 
lative" — he may function as a "rule maker." On the other hand, his 
function may be principally "adjudicative" — that is, he may function 
as a "rule applier." 

With both stereotypes there is a potential requirement of "advo- 
cacy" or "persuasion." But while the requirement of "advocacy" 
may exist with both stereotypes, the policy position of the person to 
be persuaded tends to differ with the provision being applied. 

When broad discretion is conferred by the instructions, the "law- 
making" function of the officer is primarily "legislative." He sup- 
plies necessary elements of an incompletely formulated policy. 
"Limiting laws" may curtail the ambit of discretion to make or 
complete policy which can be thus delegated or subdelegated. But 
"limiting laws" are not applied stringently in the complex and 
dynamic contexts in which military officers usually serve. 

There is a secondary "adjudicative" lawmaking function when 
broad discretion is conferred. After the officer supplies the policy 
elements omitted by the framer of instructions, his primary function, 
he then appraises the facts confronting him and decides whether 
and how he should act. Law, on a modest scale, is made in the 
"adjudicative" process also. 

Rather than conferring broad discretion the instructions may be in 
the general form: If "X" does acts "A," "B," "C" and "D" in a 
specified relationship, you will then do act "E." The framer describes 
the action and its conditions. 

"X," "A," "B," "C" and "D" will never appear in the exact form 
the framer of instructions predicts. Nor will act "E" have precisely 
the consequences he anticipates. If the instructions remain in force, 
the events to which the instructions were first applied and the con- 
sequences flowing therefrom will not be repeated. 



65 

The instructed officer must thus conduct mentally an informal 
trial to determine whether the conditions for action are met. He 
attempts to foresee the probable consequences of action in the "dif- 
ferent" context and whether these contribute to the objective sought 
by the framer of instructions. He finds facts and relates these to the 
plan he applies. The process, essentially, is "adjudicative." 

A "legislative" function figures in a secondary role. The instructed 
officer reads meaning into the instructions from his experience. By 
contracting or protracting the wording of the instructions, in the 
light of his factual analysis, the officer decides whether to act — and 
if he does act, whether to perform act "E" or some variation. 

The only advocacy required, whether the instructions are broad or 
narrow, may not exceed a simple explanation to an official superior. 
But economic warfare tends to present issues of critical national and 
international importance. A foundation for an argument or argu- 
ments to support favorable characterizations of the action by rele- 
vant communities should thus be prepared. Although the arguments 
may never be advanced, they nevertheless should be available if 
needed. 

Reasons for Concern About Future Community 
Characterizations of Economic Warfare 

Why should a naval officer charged with conducting economic war- 
fare be concerned with "legality" of his action. A judgment about 
"legality" of an act when the act is done involves a forecast whether 
a relevant community will respond to the act ; whether it will respond 
through use of its formal decision-making processes; and whether 
the judgment of the formal authority of the community will be that 
the act in question is "permissive" or "unpermissive." Furthermore, 
a judgment about "legality," to be meaningful to an executive officer, 
must embrace a prediction whether the formal judgment will be 
implemented, if unfavorable, by action to attenuate the effects of 
the economic warfare policy considered. 

Because of these variables, no one can say with assurance that an 
act is "legal" or "defensible" when done. There is an element of 
dynamic change both in legal institutions and the primacy of values 
sought. The "legitimacy" of action thus tends to be a product of 
"persuasion" of decision makers in a particular context. 

This task of persuasion is most effectively handled by legally 
trained professionals. With other features in planning and executing 
economic warfare demanding close attention by a naval officer en- 
gaged in economic warfare, how then can the time of an officer with- 
out legal training rationally be allocated to considering "legal" fea- 
tures of the transaction ? 



66 

One reason for attention to the legal features of an economic war- 
fare policy at low administrative levels, whether the policy is being 
formulated or executed, is the bearing of an implemented community 
determination of "impermissiveness" upon the effectiveness of the 
action undertaken. Whether characterized by a community as "legal" 
or "illegal," an executed economic warfare plan has impact upon 
the environment and sets in motion a chain of events. But if an 
adverse community decision is rendered and implemented these effects 
may be attenuated. The degree of this attenuation depends upon 
the degree of concomitance of the community decision to the eco- 
nomic warfare act and the intensity and skill of implementation of 
the decision. If a community characterization is delayed, there is a 
diminishing possibility that the effects of economic action can be 
interrupted. 

An economic sortie may avoid the full effect of an adverse com- 
munity characterization. The sortie technique also tends to permit an 
effective withdrawal and redirection of economic action when re- 
quired by an adverse community decision. But even when economic 
sorties are used, adverse community characterizations, producing 
when implemented, premature or forced abandonments of policies, 
also produce value losses in the state engaging in economic warfare. 

When a community characterization of economic warfare is not 
rendered in substantial concomitance to the event, the prospect 
steadily decreases that such a decision will be rendered. Yet delayed 
characterizations do occur. 

Although these characterizations have little effect upon the impact 
of an executed economic warfare policy, the element of delay complin 
cates fact finding when an issue of personal civil or criminal lia- 
bility of the officer who engaged in economic warfare is presented. 
Furthermore, in these delayed decisions there is a macrocosmic dis- 
play of the "law-observing" image of the state waging economic 
warfare. 

If the state is represented as a chronic "lawbreaker," by exag- 
gerating the fiction of community participation in individual acts, 
this adverse global publicity may affect its diplomatic posture. For 
example, the delayed trial of Eichmann before an Israeli Court, in- 
volved a review, long after the events became obscure, of the anti- 
Semitic program of Nazi Germany. The attendant publicity pro- 
duced much introspection in West Germany and contributed to ulti- 
mate West German recognition of Israel and consequent complica- 
tions in West German relations with Arab States. 



67 

What a Naval Officer Can Do About the 
Legal Problems in Economic Warfare 

When a naval officer is sensitive to problems of "legality" in eco- 
nomic warfare, he will be aware that his is not the concern of a 
bystander but the concern of an active participant. What can he do 
about these "legal" problems? 

First, he must understand the kinds of legal problems produced 
by naval activity in economic warfare in the past, the community 
levels at which solutions of these problems have been sought and the 
shape of the community solutions advanced. This book is devoted 
principally to development of this background. 

Second, he must have a thorough knowledge of his national posture 
in economic coercion, both in offense and defense, with the national 
and international law bearing upon it. An understanding of his 
national posture requires understanding of the economic coercive 
postures of the principal adversaries of his state. Community char- 
acterizations of naval action will turn primarily upon the conse- 
quences of the action; and these consequences are predictable only 
when the broader context of action is grasped. A development of this 
broader context is attempted in Chapter II. 

Assuming an adequate flow of intelligence to and from the naval 
officer concerned, the background elements mentioned permit con- 
formity by the officer to past patterns of conduct to the extent current 
facts and his mission permit. The greater the degree of conformity 
to past conduct patterns held "legal" or "permissive" by relevant 
communities, the greater the likelihood these characterizations will 
be repeated. 

It is impossible to duplicate fully these conduct patterns. Nor is 
conformity frequently desirable — especially when economic warfare 
is waged as a primary policy device. 

The "economic sortie," an economic warfare technique recom- 
mended in this book for many applications, is a sharp departure 
from traditional economic warfare postures of major Western 
powers. These Western powers, furthermore, have been responsible 
for developing much of the international law applicable to economic 
warfare. 

Thus, both the planner of an economic sortie and the officer 
charged with its execution must consider the extent to which the 
sortie differs from conventional economic warfare postures of his 
state. There is "legal" value in conformity and an element of 
jeopardy in nonconformity. 

But if a departure from the norm is necessary in economic war- 
fare, the emphasis shifts from the element of repetition of conduct 



68 

to secure favorable community characterizations to "legal strategy" 
or "legal management" to secure this favorable acceptance. How does 
a naval officer deal with these dynamic elements? 

The Persistent Problem of Persuasion 

In the moving factual framework in which he operates, a naval 
officer may have to persuade a formal policy maker to accept his 
action as "permissive" or "legal." More often he sets, or participates 
in setting, a factual matrix as a foundation for persuasive efforts by 
others. 

Whether the naval officer persuades directly or prepares the founda- 
tion for persuasion by others, he will be aided in his tasks by develop- 
ing insights concerning three matters. First, is ability to predict the 
level at which community characterizations of naval action probably 
will be made. Second, is understanding retrospective aspects of com- 
munity characterizations and the difficulties stemming therefrom. 
Third, is appreciation of the "legal perspectives" of potential deci- 
sion makers for relevant communities. What is the decision maker's 
understanding of "law"? Does he think "law" is made — and, if so, 
who is to make it ? 

Locating the Potential Decision Maker 

By far the most important step in locating potential decision 
makers is anticipation by the planner or executor of conflicting de- 
mands the economic action probably will produce. If these demands 
normally will be asserted through the institutions of the state which 
the officer represents, no international decision makers are likely to 
be involved. General Butler in the "contraband" transaction care- 
fully evaluated these interests and predicted correctly that no formal 
decision concerning his action would be rendered. Captain Wilkes 
failed to foresee that British claims concerning his interception of 
Trent would gain support in his own country and frustrate his rea- 
sonable purpose. 

The instructions, if any, under which the officer operates provide a 
rough guide indicating the possible decision maker. When an officer 
acts without instructions, the community decisions may be made by 
institutions of his own state or by international organizations or by 
other states. Apart from predicting the interests affected, there is 
no way to forecast with assurance the community or communities for 
which decisions will be rendered. Both Butler and Wilkes acted 
without instructions. There was no community intervention in 
Butler's case. United States authorities intervened to restore the com- 
missioners removed from Trent only after a complaint by England. 

An officer acting pursuant to a broad grant of discretion is not 



69 

likely to be questioned by his national authorities. He has been in- 
vested by these authorities with a "legislative" function. However, 
the state for which he acts may be concerned with characterizations 
by international organizations or by other states. The officer also, 
although infrequently, may be required to answer before an interna- 
tional tribunal or before a tribunal of another state. 

If the officer operates under precise instructions, his lawmaking 
function primarily is "adjudicative." His misconstruction or dis- 
obedience of these instructions renders him answerable to his official 
superiors. It is unlikely, on the other hand, he will be tried for mis- 
construing, obeying or disobeying these orders by an international 
tribunal or even the tribunal of an adversary. 

Only a small percentage of the cases of officers acting in violation 
of international conventions or custom pursuant to superior orders 
were brought to trial before international or national tribunals after 
World War II. Apart from the fact that the burden of trial fell upon 
the officers of defeated enemy political establishments, a case was 
tried only when criminal participation by the officer seemed amply 
clear. Cases involving disobedience or negligence in executing orders 
were tried frequently by states of the officers concerned. Numerous 
less formal disciplinary measures were applied. 

Relevance of the Policy Level of the Decision 
Maker to a Characterization of Economic Warfare 

The factual and legal perspective of the decision maker is affected 
by his policy level as is the time proximity of the decision to the 
economic warfare event. The element of time proximity in turn 
affects not only the process by which the decision is made, but also 
the factual and legal perspective of the decision maker. 

Suppose, for example, it became necessary in the judgment of a 
destroyer commander, permitting no delay for instructions, to destroy 
an adversary submarine in a zone of interdiction such as that estab- 
lished in the Cuban Quarantine of 1962. The question immediately 
arises : what community or communities will make critical decisions 
of "legality" or "illegality" (or "permissiveness" or "impermissive- 
ness" of the action) ? 

The importance of this conflict, whether the officer had broad dis- 
cretion or operated subject to precise instructions, will require deci- 
sions within the naval command structure and at other levels within 
the Federal Executive Branch. The matter might come before Con- 
gressional Committees. Although a domestic judicial decision is 
unlikely, the case might be heard before a Naval Board of Inquiry 
or Court-Martial . 

But these will not be the only decision-making levels at which the 



70 

action is characterized. The broad spectrum of interests involved will 
certainly elicit decisions by global and regional security organiza- 
tions. The United Nations Security Council would have the case 
placed before it by the adversary state. Jurisdiction by the Interna- 
tional Court of Justice might be invoked. Ad hoc institutions created 
by nonaligned states might characterize the transaction and be able 
to implement the decision in various ways. The adversary state might 
capture the officer or his vessel and conduct judicial proceedings. 

Assuming decisions are made within the "state-community," within 
the naval command structure for example, the immediate issue which 
determines the bounds of inquiry will probably be the "reasonable- 
ness" of the officer's judgment concerning the necessity of defense of 
his vessel by the means adopted. But if the case is brought before the 
Security Council with the issue of international delinquency of the 
United States placed before it, the issue probably will be whether 
the force employed by the United States in the transaction in which 
the submarine was destroyed was proportionate to the threat posed 
by its adversary to its territorial integrity or political independence. 43 

Before the Security Council, the reasonableness of decisions of 
many United States officials will be considered as these bear upon 
creation of the environment in which the naval clash occurred. Judg- 
ments may be rendered concerning the "necessity" and "propor- 
tionality" of the "Quarantine." The Council may consider the degree 
of effort by United States officials to find and analyze relevant facts 
before executing the Quarantine policy. The extent of their deference 
to international law as a coordinating scheme to minimize conflict 
with the adversary and the degree of their moderation in response 
to coercion may also be in issue. 

The policy level thus tends to determine the "legal doctrine" ap- 
plied as a standard of judgment. This doctrine tends to determine 
the scope of factual inquiry. 

Decisions in the state of the officer who has taken the action are 
likely to be made in greater concomitance to the events. The element 
of retrospectivity in characterizing the act will have, for this reason, 



43 A state may resist by employing force proportionate to an imminent threat 
to its territorial integrity or political independence. E.g., Bowe, Self Defense in 
International Law, 8-27 (1958) ; Brownlie, International Law and the Use of 
Force by States, 251-79 (1963) ; McDougal & Feliciano, Laiv and Minimum 
World Public Order, 217-32 (1961). The decision to employ force must be 
reasonable under the circumstances attending the threat. Under the imperfect 
system of international police of coercive acts now prevailing, a provisional 
decision to use force may be made and executed consistently with the United 
Nations Charter when the necessity is clear to the state officials responsible for 
acting. 



71 

less effect than if the decision is delayed and rendered by a global or 
regional authority. 

If broad discretion has been conferred upon the officer sinking the 
submarine, his primary lawmaking function is "legislative." His 
official superiors in his state-community may characterize his action 
as "lawful" or "permissive" ; whereas decision makers representing a 
global community may identify the action of the officer with that of 
the state and characterize the action as "unlawful." 

If the lawmaking function of the officer is primarily "adjudica- 
tive," the officer may encounter difficulty with his official superiors if 
he deviates too far from his instructions. Yet he may not have 
deviated so far as to be unable to plead superior orders either in 
defense or mitigation before an international tribunal. 

Retrospective Aspects of Community 
Characterization of Economic Warfare 

An officer commanding a ship on blockade, when intercepting a 
vessel threatening a blockade breach, makes a decision based upon a 
retrospective consideration of facts. He isolates and temporarily 
crystallizes in his mind facts in a relationship imposed by his per- 
spective. This perspective may be broadened or narrowed by predic- 
tions of probable future events and information concerning concomi- 
tant events developed by the officer or communicated to him by his 
intelligence service. But the process must be performed without delay 
for detailed study and deliberation. The decision is based upon a 
"segmented judgment of fact." It is, however, only one decision in a 
closely meshed series. 

The factual context is dynamic. The officer involved is trained to 
make supplementary decisions in rapid succession. While each deci- 
sion is based upon a "segmented judgment of fact," the rapid build- 
ing of one decision upon another minimizes the factual obsolescence 
in each decision. Each decision is obsolete when made — but the effects 
of the decision are assessed with such rapidity and a new decision 
made with such promptness that a rational general direction of action 
is maintained. 

Community characterizations of naval decisions share the common 
element of retrospection. But due to the typically greater time lag 
between the community characterization and the event in question 
than between decisions made by a naval officer conducting economic 
warfare, a community characterization tends to be distorted by 
factual obsolescence. Not only does the community decision tend to 
be "out-of-date" when rendered, but maintaining a rational policy 
orientation through successive decisions is difficult. This rational 
policy orientation is difficult because community decisions are ren- 



72 

dered by uncoordinated authorities (at national and international 
levels for example) ; with differing factual perspectives, stemming 
from the policy level of decision; and at erratic time intervals. 
Factual obsolescence accentuates the diversities in policy produced by 
the level of authority of the decision maker. 

The process by which a community characterization is formulated 
is also affected by the time lag between the community decision and 
the events giving rise to it. In community decisions substantially con- 
temporaneous with the events, which include most of the characteri- 
zations by national authorities and some international characteriza- 
tions as well, the "segmented judgments of fact," stemming from the 
close scrutiny of economic warfare transactions permitted by modern 
communications, produce tendencies to prejudge the issues. Issues are 
defined and prejudgments made as the events unfold. 

These tentative judgments are related by decision makers to the 
factual spectrum defined by their particular perspectives when an 
authoritative characterization of the events becomes necessary. How- 
ever, this element of prejudgment (or bias), an element which 
Western legal cultures seek to exclude in domestic judicial processes, 
works in favor of rational characterizations of economic warfare. 

The decision makers share the experience and understand the prob- 
lems of planners and executors of economic warfare policies. The 
"judge" can put himself in the position of the actor when judging his 
action. If the judge and the judged share this common skein of 
experience, prediction of the probable community characterization 
becomes simpler on the part of the naval policy maker or executor 
and the groundwork for persuasion of the decision maker can be 
laid accordingly. Most of the community decisions with which a 
naval officer will be concerned are those generally contemporaneous 
with the economic warfare events. 

But suppose the important community decision in the particular 
context is not one substantially contemporaneous with the economic 
warfare events. The greater the time lag between the economic war- 
fare events and the community characterization, the more detached 
personally from the events the decision maker is likely to be. The 
process of "segmented judgments of fact" decreases in importance 
as an element of the ultimate decision as the personal knowledge of 
the events by the decision maker diminishes, his perspective broadens 
and his factual horizon recedes. 

Disassociation of the judge from the events reduces bias. But this 
disassociation also makes it difficult to apply standards of judgment 
involving subjective features. The judge can no longer put himself 
in the position of the actor. 

In "delayed" retrospective decisions, the tendency has been to 



73 

develop standards in which objective features dominate. For exam- 
ple, disputes concerning claims to territory or natural resources are 
often submitted for adjudication long after the disputes arise. The 
standard for decision stresses manifestations of effective control over 
the territory and resources. These are objective features. The "rea- 
sonableness" of the claims or the "intents" with which the claims 
were asserted involve subjective features not subject when much 
time has passed, to effective exploration. Personal contact of judges 
and witnesses with the events will be remote. Recollections will have 
faded. 

International legal doctrines typically invoked soon after the 
events, such as "rights of self-defense," tend to take into account the 
perspectives and performances of the actors to a greater degree than 
do doctrines typically invoked long after the events have transpired. 
In retrospective decisions of later vintage, the inquiry will be directed 
towards objective factors. The question will then be framed in terms 
of "intervention," "aggression," "unneutral acts" or similar high 
order abstractions. An effort will be made to pour meaning into the 
terms by relating them objectively to verifiable events. 

An exception to this general pattern of delayed decision making 
has been the handling of individual responsibility for criminal acts 
in international law. Typical have been cases involving war crimes 
and crimes against humanity. In many of these, "superior orders" 
have been offered by the accused either in defense or in mitigation of 
punishment. 

When "superior orders" were urged in defense or mitigation of 
punishment, the accused was expected to show he had acted "reason- 
ably" in relying upon and obeying the order. The tribunal passed 
upon this subjective element of the defense. 

Some orders were held by the tribunals to be prima facie illegal — 
seemingly upon the theory any reasonable man ought to sense the 
element of illegality. 44 There was also a judgment of "reasonable- 
ness" in passing upon the response of the accused to an illegal order. 
The accused was expected to have made a reasonable determination 
of the probable force to be used against him if he disobeyed. 45 When 
an illegal order was issued as a reprisal, the accused was expected to 
make a reasonable judgment of the necessity and proportionality of 
the act ordered. 46 



44 See Trial of Wielen, 11 War Crimes Reports, 31, 46-47 (1947) ; Trial of 
Renoth, 11 War Crimes Reports, 76, 78 (1946). 

45 See Office of United States Chief of Counsel for Prosecution of Axis Crimi- 
nality, Nazi Conspiracy and Aggression. Supp. B at 53-54 (1948) ; The German 
High Command Trial, 12 War Crimes Reports, 1, 72 (1948). 

46 See Trial of Von Falkenhorst, 11 War Crimes Reports, 18 (1946). 



74 

Kational decisions were rendered by applying a "reasonableness" 
standard in war crimes and related cases conducted during World 
War II hostilities or within a few years thereafter. Many of the 
judges and prosecutors were military personnel. They had served 
under the same pressures described by the accused in defense or 
mitigation of punishment. 

But as time passed, "reasonableness" continued as a standard for 
judgment. Advantages were produced by the delay. The element of 
bias or prejudgment probably diminished. Emotion which charged 
earlier trials had dissipated. The loss of evidence by reason of the 
time lag was more than compensated by evidence which could not 
have been produced had the case been tried during or soon after the 
war. Yet the impracticality of the "reasonableness" standard as a 
guide for judgments rendered long after the events led to the sur- 
reptitious introduction of standards of simple political expediency 
when the case was decided. 47 These standards of political expediency 
obviously cannot be forecast when economic warfare is conducted. 

When a naval officer conducts economic warfare, the defensive 
aspects of his legal strategy, directed to contemporaneous community 
characterizations of his action or to remote characterization poten- 
tially involving objective standards, should emphasize his control 
over the factual matrix upon which the decisions will tend to rest. 

This control by the officer over the factual matrix quite obviously 
will not be complete. Decisions other than his own may appear rele- 
vant in retrospect. Of many of these he may be unaware when he 
acts. 

This tendency of the facts to escape his control will be compen- 
sated, however, by the "segmented" factual process by which con- 
temporaneous judgments are based and by the latitude for shifting 
the perspective (factual and legal) of the community decision maker 
afforded by his persuasive ability and that of legally trained pro- 
fessionals who assist him. 

Control over the factual matrix becomes of decreased importance 
in relation to delayed decisions in which subjective standards for 
judgment purportedly are applied. As pointed out, the decision 
maker may diverge from the standard stated and apply unpredictable 
standards which are not articulated. The stated basis for judgment, 
for example, may be the unreasonableness of reliance by the officer 
upon a superior order. But the actual basis may be a judgment that 
it is inexpedient in the general community to permit a state to con- 
centrate in a single person the powers the officer was authorized to 



47 See Arendt, Eichmann in Jerusalem, A Report on the Banality of Evil 
(1963) passim for an exploration of these problems in the highly publicized 
Eichmann trial. 



75 

exercise. The officer may be penalized as a symbol of the delinquency 
of his state-community. 

In the defensive aspects of legal strategy, viewed from the level 
of the naval executor, judgments about the legal perspectives of 
potential community authorities who may characterize the action are 
important elements in planning and executing economic warfare. The 
importance is greater in relation to delayed characterizations involv- 
ing subjective standards than in characterizations of other types. 

Perspectives About Law and Lawmaking 

In a delayed decision involving subjective standards, the outcome 
might turn upon the predisposition of the decision maker concerning 
how power should be allocated in the community he represents. As 
applied to the extensive administrative "lawmaking" functions in- 
volved in planning and executing economic warfare, the decision 
might rest upon how much law the decision maker thought had been 
made and who, in his community, he thought should make it. 

A person recognizing elements of change in legal institutions and 
in the primacy of values sought through these will recognize the role 
of persuasion and the concept of management in dealing with prob- 
lems possibly amenable to solution by legal devices. A person visual- 
izing legal principles, bearing upon means and ends, as static ele- 
ments, will deny law is managed or that persuasion is a dominant 
element in the process of making a decision in a legal context. Au- 
thorities holding both views, and expressing various shades of 
opinion related to these views, will make critical community charac- 
terizations of economic warfare. 

The problem of persuasion thus involves convincing a decision 
maker that: (1) legal institutions and the primacy of values sought 
through these can and do change; (2) these changes can be initiated 
on an administrative level; and (3) the changes so initiated are 
compatible with the value preferences of the community whose au- 
thority passes upon the economic action. 

The three basic perspectives about law and lawmaking with which 
a legal strategist in economic warfare may have to deal may be 
described for present purposes as "paleofundamentalist," "neofunda- 
mentalist" and "behavioristic." The first two perspectives have been 
and are still closely allied with religious tenets. There has been much 
feeding of ideas back and forth between legal and religious systems. 
Behavioristic perspectives are based upon methods developed largely 
during the late 19th and 20th centuries for the study of human rela- 
tions. Psychological and sociological materials are stressed and 
much value is placed in methodology. Currently, either paleofunda- 
mentalistic or neofundamentalist legal perspectives are those most 



76 

likely to be encountered among community decision makers, although 
behavioristic schools are attracting increasing numbers of adherents. 

Paleofundamentalist legal concepts are usually shared either by 
persons charged directly with the execution of laws or by those 
persons against whom laws are executed but who have little or no 
part in their formulation. Military and police officers, as specialists 
in violence, share this perspective as do laymen who have no experi- 
ence in lawmaking either directly or by electing and scrutinizing 
lawmakers. 

A military officer, for example, is steeped in an authoritarian tradi- 
tion. He relies extensively upon military regulations to define his 
relationships with his superiors and subordinates. When he executes 
his orders, he expects to rely upon law which is stated and certain. 
As he sees it, this law is a scheme necessarily developed in the past. 
When he issues orders to his subordinates, he depends upon a concise 
and clearly articulated framework of law within which these orders 
are to be executed. He depersonalizes his exercises of authority by 
relying upon his position formally established within a legal system. 

The paleofundamentalist regards a legal system as an arsenal of 
approved solutions. These solutions can be discovered by a lawyer or 
layman. When a solution so discovered is presented to an appropriate 
official, this official then applies the solution to resolve the conflict 
which stimulated legal action. Lawmaking is envisaged as done in 
the past by persons in positions of authority who drew their ideas 
from a superior system of logic or from divine inspiration. 

By emphasis upon past legal doctrine as "law" and upon past acts 
as "lawmaking," the perspective of the paleofundamentalist tends to 
turn him towards action through legal institutions only when cur- 
rent controversies bear a close analogy to the factual conditions of 
past statements of legal policy. His tendency to invoke legal processes 
thus is reduced as factual analogies become difficult to make. As the 
ambit of law, as he sees it, is thus limited through his inability to 
draw factual analogies, he tends to shift radically to ad hoc legisla- 
tive improvisations or to rely upon nonlegal techniques in executing 
policies. 

Demands for highly organized and coordinated action and a high 
degree of predictability of response to action are forces which attract 
adherents to the paleofundamentalist position. But these demands 
are never satisfied because radical or revolutionary lawmaking efforts 
or recourse to nonlegal techniques for distributing or redistributing 
values tend to breed the disorganization of action and unpredicta- 
bility in response to action which the paleofundamentalist seeks to 
avoid. Furthermore, the tendency by the paleofundamentalist to in- 
voke legal processes only when factual analogies to past doctrinal 



77 

conditions are clear, means that legal processes are often used when 
unnecessary. 

Recourse to ad hoc legislation when dealing with a specific conflict 
tends to produce either a narrow statute which quickly becomes obso- 
lete and is easily evaded or a general statute immaturely considered 
because aimed at a single case. Establishing patterns of special treat- 
ment by ad hoc methods stimulates special demands conducive to dis- 
organization because subgroups, often seeking values incompatible 
to those of the major group, may be organized to support these de- 
mands. General laws aimed at particular cases engender unpredicta- 
bility in official action and complicate the task of law enforcement. 

The coup aVetat, an extreme manifestation of the tendency by the 
paleofundamentalist to ad hoc lawmaking activity, does not stem in 
most cases from military disrespect for regular legal processes for 
change but from presentations of new facts making analogies diffi- 
cult to conditions stated in constitutions, statutes or court decisions. 

The tendency of the paleofundamentalist to rely upon nonlegal 
techniques, extending from moral or ethical pressures to mental and 
physical coercion, blurs the standards applied in executing policies 
and increases resistance to them. 

Formulations of moral and ethical requirements tend to be per- 
sonalized and provisional as contrasted with the generality and con- 
clusiveness associated with "legal" prescriptions for conduct. Moral 
and ethical processes are useful in supporting "legal" processes in 
executing policies or in predicting or analyzing responses to these 
policies. But exclusive reliance upon moral or ethical standards 
weakens identification of the policy target with the policy maker. 
Hostilities of the target also are projected against the informal group 
sharing the moral or ethical standards. These groups may lack the 
effective authoritarian symbols to dispel this hostility. A formally 
organized community usually possesses the symbols to retain the 
loyalty of its members despite their discontent with "legal" prescrip- 
tions. Coercive pressures beyond the rubric of "law" to require ad- 
herence to alleged moral or ethical norms, intensifies resistance by 
the policy target. 

When the paleofundamentalist repeats his use of legal processes 
in fact situations closely analogous to fact situations stated in legal 
doctrine, he may invoke law in many instances in which these con- 
flicts are being resolved by nonlegal devices. This makes his use of 
law superfluous. This phenomenon is often encountered in activity 
requiring a high degree of coordination. 

For example, a past statement of legal policy, rigorously and gen- 
erally enforced, acts as an institutional bellwether. Courses of activity 
may be set by the policy in a direction justifiable by some obvious 



78 

requirement of coordination or cooperation. Thus, hand or electrical 
signals required by state statutes to be made by drivers before turn- 
ing automobiles would continue to be made by most motorists even 
though statutes requiring these signals were repealed. The require- 
ment that notice be given of the imposition of a blockade jure belli is 
superfluous because no modern blockade can be efficiently maintained 
unless mass communications are utilized to the fullest extent prac- 
ticable to give notice to vessels which might enter the blockaded area. 
Neo fundamentalists, including within their number most of the 
legal profession, emphasize doctrinal aspects of law but believe prin- 
ciples of action can be found in these past policy expressions by 
which current policies can be guided. Neofundamentalism is a con- 
scious or unconscious acceptance of central tenets of the 19th century 
"Historical School" that solutions to present problems and forecasts 
of future directions of growth stem from principles discoverable in 
human experience. Marx's theory of economic determinism, Maine's 
social theory of history derived from the experience of oriental vil- 
lage communities, and Admiral Mahan's search for principles of sea 
power affecting history are outgrowths of this dominant 19th century 
mode of thought. 

As Admiral Mahan put the matter : 48 

* * * It is not * * * a vain expectation, as many think, to look 
for useful lessons in the history of sailing ships as well as that 
of galleys. Both have their points of resemblance to the modern 
ship; both also have their points of essential difference, which 
makes it impossible to cite their experience or modes of action 
as tactical precedents to be followed. But a precedent is different 
from and less valuable than a principle. The former may be 
originally faulty, or may cease to apply through change of cir- 
cumstances; the latter has its root in the essential nature of 
things, and, however various its applications as conditions 
change, remains a standard to which action must conform to 
attain success. War has such principles; their existence is de- 
tected by the study of the past, which reveals them in successes 
and in failures, the same from age to age. Conditions and weap- 
ons change ; but to cope with one or successfully wield the others, 
respect must be had to those constant teachings of history in the 
tactics of the battlefield, or in those wider operations of war 
which are comprised under the name strategy. * * * 
The legal neofundamentalist, while perceiving law as a matter of 
management in accordance with principle, labors under the insur- 



48 Mahan, The Influence of Sea Power Upon History, 1660-1783, 7 (25th Ed., 
1917). 



79 

mountable disadvantage of lack of documentation and proof of the 
history upon which he relies as a source. There is no dearth of law 
books, but these books concentrate upon statements of principle. If 
the neofundamentalist seeks to go behind these statements to verify 
them, he finds himself in intellectual quicksand — and the further he 
probes the deeper he sinks. 49 

If he relies upon political history, he must consider the factual 
sifting by biased reporters, intentional misstatements for political 
purposes, and unconscious deficiencies in contemporary powers of 
observation of the facts and their relationships. 

If he looks to reports of judicial decisions, he must take it for 
granted all the facts were not reported. Some facts were never intro- 
duced in evidence, some seemed irrelevant to the judge who decided 
the case, and others seemed unnecessary to the reporter. 

If he looks to statutes, often he will find no facts unless he can 
find records of committee hearings or relevant contemporary political 
histories — all subject to the limitations previously mentioned. If ap- 
plication of the principle cannot be verified in the past, the neofunda- 
mentalist deals with history that is partially or wholly hypothetical. 

The neofundamentalist, although he seeks principles for action, 
finds he must substitute for the assurance he deals with principles 
actually related to past fact, faith in the wisdom of the court or legis- 
lature formulating the principle and respect for the organ of author- 
ity by which the principle was propounded. To this extent, he is in 
much the position of the paleo fundamentalist. However, the neo- 
fundamentalist views principles as developing from a recurring flux 
in human relationships (religious, economic or military, for exam- 
ple), relationships which are discerned and given authoritative ex- 
pression as principles of action. This means that, unlike the paleo- 
fundamentalist, the neofundamentalist will invoke legal processes in 
preference to nonlegal modes of executing policies or to sweeping 
legislative or constitutional changes by constitutional or unconsti- 
tutional methods. 

Adherents to the "Behavioristic Schools" reject the postulate of the 
neofundamentalist that principles of legal growth can be found in 
history. The behaviorist considers history a mass of myth and 
miranda which will confuse rather than clarify the current adminis- 
tration of law. The behaviorist emphasizes, instead, techniques by 
which the mind of a decision maker can be opened to the relevance 
and interrelationship of contemporary events. He does not reject 
entirely the value of historical experience, since he uses this experi- 



49 See Nevins, The Gateway to History (1963) passim for an exploration of 
some of these problems from the perspective of a professional historian. 



80 

ence to establish relationships between values; between values and 
the institutions and resources by which values are sought; and the 
impact of time, space and physical change upon these events. 

The behaviorist draws consciously upon data currently developed 
in the physical and social sciences and puts this material to use in his 
methodology and in his policy recommendations. "Idealistic behav- 
iorists" select, define and advocate the policy primacy of values in a 
value system and advocate policies for maximum access to these 
values by members of the communities with which the particular 
behaviorist identifies. 

The task of the legal strategist in economic warfare would be 
simplified if every decision maker thought about "law" in the same 
way. Patently, this is not the situation. 

In persuading the paleofundamentalist, much emphasis must rest 
upon control by the naval officer over the factual matrix of the con- 
flict. Conformity in order to permit ready factual analogies will be 
valuable. 

When conformity to past practices cannot be maintained, the 
paleofundamentalist may question whether a naval officer engaged 
in economic warfare should function as an effective lawmaker. His 
position probably will be that law should be made both formally and 
effectively at high policy levels. 

This predisposition about lawmaking is difficult to controvert. It 
can be accommodated if the paleofundamentalist is kept in close con- 
tact with the evolving facts, his decisional process of segmented judg- 
ment of fact thus bringing him in close contact with the perspective 
of the naval executor in economic warfare. 

The paleofundamentalist can be convinced without difficulty that 
much existing legal doctrine is obsolete. He may be persuaded for 
example, that statutes and treaties tend to be creatures of compromise 
and may be, in a particular situation, only "legal shells" or "ex- 
hausted elements of maneuver" betAveen former competing interest 
groups within a relevant community. 

The difficulty is that while the paleofundamentalist can be con- 
vinced that specific legal policies are obsolete — there being no prob- 
able factual analogy currently to that stated in a legal doctrine — his 
tendency then may be to shift either to nonlegal techniques or to 
seek some radical form of legal revision. The first may result in over- 
sight of important legal elements in economic warfare described in 
this Chapter — relevant both in economic offense and defense. The 
second may take more time than can be tolerated in executing eco- 
nomic warfare. 

The approach to the paleofundamentalist should thus emphasize 
conformity to past practice, obsolescence of the applicable legal doc- 



81 

trine and minimum legal change by the naval executor in executing 
economic warfare policy. The breadth or narrowness of the adminis- 
trative instructions under which the officer acts will certainly bear 
upon a decision by the paleofundamentalist, the latter insisting upon 
strict adherence to specific instructions but tolerating major diver- 
gences when instructions are broad. 

A neofundamentalist will accept the role of a naval administrative 
maker of law but will be less receptive to arguments that legal doc- 
trines are obsolete. The neofundamentalist finds enduring statements 
of principle in legal doctrine. A naval administrator will be expected 
to operate within the confines of a legal system in the interest of the 
coordination, balance and direction such a system may provide. 

Persuasion of the neofundamentalist does not turn principally 
upon control of the factual matrix by the naval executor of economic 
warfare. Critical, instead, is skill of the naval executor or skill by 
others in defining within the naval transaction principles of action 
consistent with the values the relevant community is organized to 
seek. Analysis rather than control of facts is vital. 

Behaviorists will recognize the lawmaking role of a naval officer 
without difficulty. Attention to legal doctrine by these decision 
makers will be directed primarily to doctrinal impact upon predis- 
positions to action. Their methodology, permitting an accurate iden- 
tification of values within a community, the primacy of these values 
and the institutions by which these values are sought, affords a basis 
for predicting their decisions. Yet the great weight placed by the 
behaviorist upon the influence of his decision upon contemporary 
and future trends, with his intensive development of physical and 
social science resources as decisional aids, also diminishes pre- 
dictability. The behaviorist, nevertheless, is amenable to arguments 
based upon the actual impact of the economic warfare policy and 
its continuing compatability with community values. 



CHAPTER II 

LEGAL STRATEGY IN 
DEFENSIVE ECONOMIC WARFARE 

THE SUGAR ENCOUNTER 
INTRODUCTION 

The "Sugar Encounter" between the United States and Castro 
Cuba was a step in a progression of events leading to naval participa- 
tion in such transactions as the Cuban Quarantine of 1962 and 
the Cuban land blockade of the Guantanamo Naval Base. As with 
most forms of economic warfare, the "Sugar Encounter'' evolved 
towards mutual political postures in which naval sea and air power 
became logical instruments of coercive economic policy. 

But apart from this demonstration from subsequent events of 
the need for an understanding by naval participants in economic 
warfare of prior economic warfare postures, the "Sugar Encounter" 
demonstrated dramatically, if not for the first time, the economic 
warfare potential of the Soviet and Sino Communist Blocs, acting 
singly or in unison, and the kinds of defensive legal problems the 
United States would have to solve to meet this emerging economic 
warfare threat. 

In the "Sugar Encounter," the United States attempted to meet 
an "economic sortie" mounted by Castro Cuba by manipulating the 
Cuban sugar imports permitted into the United States and by 
supplementary measures in the form of "protracted harassment." 
This Cuban economic sortie was mounted to divide opinion in the 
United States and prevent decisive action as communization of the 
Cuban state became increasingly apparent. 

As a delaying tactic, this economic sortie was effective. The 
United States defensive measures proved comparatively fruitless. 

The description of the evolution of this defensive sugar policy in 
this Chapter serves to develop three features without which con- 
temporary international law concerning economic warfare and 
legal strategy as a feature of economic warfare policy cannot be 
fully understood. 

The first feature is the posture of the monolithic state trader, 

83 



84 

particularly the Communist monolithic state trader, and the impact 
of this economic institution upon economic warfare and upon 
international law. 

The second feature is the national law of the United States bear- 
ing upon economic warfare and the major problems in its ad- 
ministration. No international legal problems concerning economic 
warfare can be fully understood by naval officers unless relevant 
national law is first appreciated. 

The third feature is the continuing chain of economic coercion 
and the ways in which this chain is affected by community inter- 
vention. The Chapter thus considers not only the "Sugar Encounter" 
as such, but also major economic measures put into operation upon 
initial failure of the United States defensive manipulation of the 
sugar quota. The interests affected by this complicated process were 
varied, and a naval officer in conducting economic warfare must 
become accustomed to identifying interests affected by his action 
and how the parties interested are likely to respond. 

The materials in the Chapter are essentially descriptive. They 
provide the basis for a detailed analysis of both national and inter- 
national legal problems in Part II of this book. 

A. THE MONOLITHIC STATE TRADER IN ECONOMIC 
WARFARE 

Within the past fifty years there has been an increased emphasis 
upon elements of timing and speed in executing economic war- 
fare plans and a similar increased emphasis upon the need for 
accurate aim and careful direction of offensive economic action. 
If offensive economic action is aimed accurately, directed carefully, 
executed decisively and swiftly, and terminated when the desired 
psychical effect is achieved, by-products of possible disadvantage to 
the sponsoring state are likely to be avoided. The increased emphasis 
upon these elements results partly from the presence of the mono- 
lithic state trader in commercial channels. 

1. Competitive Advantages and Disadvantages of the Monolithic 
State Trader in Economic Warfare 

The foreign trade of the Soviet Union was one of the first private 
enterprises nationalized after the Revolution of 1917. The internal 
economy of the Soviet Union is now centrally and rigidly con- 
trolled. Its controlled economy has been substantially duplicated 
in the satellites, and by Red China; and while the efficiencies of the 
Bloc systems, the details of their organization, and the capacities 



85 

of the various Bloc states to engage in economic warfare differ, the 
advantages and disadvantages of the monolithic state-trading system 
are the same for all Bloc states. 

Centralized control of domestic processes for distributing con- 
sumer goods tends to instill "use discipline" in the population. A 
low standard of living is either unwittingly accepted or grudgingly 
tolerated. Supplies required for domestic consumption are thus low 
and limited in variety. Imports are less, depending upon the 
efficiency of the local productive processes, than they would be if 
there was no "use discipline" or a higher standard of living. 

"Surpluses" can be generated to be marketed or donated abroad 
to support foreign policies. The Soviet Union, for example, despite 
the agricultural dislocation of World War II, could export 400,000 
tons of wheat to France in 1946. 

Manufactured goods available for export are likely to be for 
industrial rather than for consumer use. This tends to concentrate 
Bloc markets in areas with a low consumer demand. Bloc products 
cannot compete effectively with Free World consumer goods in 
higher consumer demand areas. To the extent consumer demand can 
be stimulated in low demand areas, local resources channeled into 
Bloc trade can be progressively restricted. 

Labor unrest, actual or potential, is a source of weakness even in 
a heavily policed Bloc community. Bloc populations, already on 
a low standard of living, are especially sensitive to disturbances in 
their food supply, either by interfering with their agricultural 
production or by blocking imports of food. 

As there are no major private entrepreneurs to protect, tariffs, 
quotas and exchange controls to limit the flow of imports are 
unnecessary, and this places the State Trader in a desirable bargain- 
ing position with "free-enterprise" states. A Bloc state may import 
foreign products in excess of local needs simply to develop a foreign 
market for future political leverage. Purchases, clearly in excess of 
Soviet or satellite needs, have been made of cocoa from Ghana, 
cotton from Egypt and the Sudan and rubber from Ceylon. 

The absence of a "profit concept" in the "free-enterprise" sense 
also has advantages for the Bloc state. While the quality of in- 
dustrial goods has been low in many instances, prices and credit 
terms offered, together with opportunities for barter, have tempted 
countries with low reserves of convertible foreign exchange. Italian 
firms selling chemicals and synthetic fibers to the Soviet Union 
have accepted oil, cotton and coal in payment. To the extent that 
Bloc trade presents a competitive threat in a Free World country, 



86 

it is difficult to deal with Bloc competition with laws keyed to 

profit concepts. In the words of Samuel Pisar : x 

* * * Western antidumping laws * * * cannot adequately 
cope with the possibility of Communist dumping or undersell- 
ing. For example, there is no effective way of determining the 
'fair value' of Communist products under the present terms of 
our Antidumping Act as amended in 1958. 2 'Foreign Market 
Value' is a useless criterion because there is no free home market 
in a Communist country. 'Constructed value' is equally useless 
because Communist cost of production is an outlandish notion 
which has no relation to normal Western cost accounting or pric- 
ing principles. * * * 

Soviet Trade Control Structure 

But by far the most important basis of competitive advantage 
in economic warfare of the Bloc state is the governmental structure 
of trade control. This stands as a barrier to economic attack by the 
traditional forms of "protracted" economic harassment and provides 
machinery for incisive economic warfare direction. 

The foreign trade of the Soviet Union is coordinated by the 
Ministry of Foreign Trade. The Minister is a member of the Central 
Committee of the CPSU. Four geographic divisions within the 
Ministry, two concerned with Bloc and two concerned with non- 
Bloc countries, deal with trade on a country-by-country basis. Other 
divisions within the Ministry deal with particular types of goods 
and with particular functions, such as finance, law, transport and 
personnel. 

Trading is done by 25 government owned corporations. Some 
specialize in trade in particular items. Others specialize in trade 
with particular areas. The corporate organizations differ depending 
upon the conditions under which they work. AMTORG, the cor- 
poration specializing in trade with the United States, is a New 
York commercial corporation, owned by the Bank for Foreign 
Trade in Moscow. 

The Ministry of Foreign Trade is represented abroad by trade 
delegations. The members of these, unlike the officers of the cor- 
porations, such as AMTORG, belong to the embassy staff and enjoy 
diplomatic immunity. The trade delegations collect economic intel- 



1 Pisar, A New Look at Trade Policy Towards the Communist Bloc. (Mate- 
rial prepared for the Subcommittee on Foreign Economic Policy of the Joint 
Economic Committee, U.S. Congress, Doc. 76695, 1961) 24-25. 

2 Antidumping Act of 1921, 42 Stat. 11 (1921), 68 Stat. 1138 (1954), 72 Stat. 
583 (1958), 19 U.S. Code 160 et seq. 



87 

ligence and serve as agents for those trading corporations which 
are not domesticated in the country with which business is to be done. 

If the country concerned does not have diplomatic relations 
with the Soviet Union, the functions of the trade delegation may 
be performed by a special group. This may be headed by the 
Minister of Foreign Trade if the political importance of the mission 
justifies his participation. 

Paralleling in some respects the functions of the Ministry of 
Foreign Trade is a state committee, GKES. This committee plans 
foreign economic operations and supervises execution of these plans. 
The Ministry of Foreign Trade, by contrast, is charged principally 
with negotiation and completion of trade agreements. 

Although little has been published concerning the control and 
operations of GKES, the committee appears to provide the political 
direction of trade of the Soviet Union and to coordinate Soviet trade 
and Soviet aid. It has the characteristics of a highly placed eco- 
nomic warfare staff. Technicians installing an industrial plant or 
furnishing advice as to its operation in an underdeveloped country — 
in short, the persons who would be channels for Soviet political 
influence — are controlled by GKES rather than by the Ministry. 

Economic activity of the satellites is coordinated by GKES 
through the Council for Mutual Economic Assistance (CEMA). 
CEMA is concerned primarily with intra-Bloc trade but deals also 
with foreign trade of the satellites. It is a consultative committee 
with a permanent conference of deputies, who meet weekly in 
Moscow, a secretariat and a policy body made up of chairmen of 
the state planning commissions within the respective satellites. 
Permanent working committees maintain liaison with the state 
planning committees. CEMA provides a point at which marketing 
information can be exchanged and satellite programs can be 
developed to support Soviet political strategies. 

The defensive capabilities of this system are impressive. Trade 
conditions, like military and political plans, are a state secret. A 
private corporation of a Free World state, a convenient institution 
for economic action in the past, must do its business in the Bloc 
state through a government agency. It has no direct contact with 
its market. 

Commercial contracts are "canned." The contracts contain provi- 
sions which are nonnegotiable and which must be accepted by the 
Free World corporation in order to do business. For example, most 
of the Soviet contracts stipulate for arbitration of disputes arising 
concerning their terms before the Moscow Arbitration Court. The 
inconvenience to the Soviet trading corporation of litigation in the 



88 

state in which the private corporation is domiciled is thus sub- 
stantially avoided. There is a remote chance, of course, that the dis- 
pute might be brought before an international tribunal. 3 

The offensive capabilities of the Bloc state trader are as imposing 
as its capabilities for defense. The highly centralized trade and aid 
organization probes unremittingly for points of legal weakness. 

The Bloc trading policy is basically divisive. Bilateral trade 
agreements are attempted, specialized to the country with which 
the agreement is negotiated. Multilateral trade agreements, which 
might provide a foundation upon which Free World states could 
confront the Bloc on a common basis, are avoided. 

Bloc trade activity can thus be conducted flexibly and opportun- 
istically without the legal impediments which many Western states 
have accepted in order to obtain reciprocal trade concessions. In 
writing of the difficulty in regulating trade relations with Com- 
munist countries, Mr. Pisar states : 4 

The steady proliferation of bilateral agreements and barter 
arrangements constitute an increasing obstacle to the assimila- 
tion of Communist trade into the multi-lateral framework of 
world commerce. Existing arrangements such as GATT, the 
International Monetary Fund, various trade associations and 
commodity exchanges, as well as more specialized international 
conventions (e.g., arbitration, patents, copyright), cannot in 
general be expected to cope with the peculiar phenomenon of 
Communist trade. Either Communist countries refuse to adhere 
to such established 'gentlemen's agreements' or, if they do 
adhere, their obligations assume a distorted meaning in the 
context of a state-operated market. 

A Soviet trading corporation can contact its buyers directly in 
Free World states. It can circulate catalogs, stimulate demands, 
take advantage of local patents and glean much economic intel- 
ligence. 

Soviet Bloc Economic Warfare Techniques 

The Soviet Union began to implement its foreign policy by eco- 
nomic measures in 1923 as it recovered from the internal disloca- 
tion produced by revolution, famine and blockade. But no major 



3 Recourse to adjudication will depend upon the willingness of both the state 
of domicile and the Soviet Union to participate. The corporation would have no 
special status to appear as a litigant and would have to be represented by its 
state of domicile or by some other state which might claim the right to extend 
its protection. 

4 Pisar, op cit., 26. 



89 

use of wealth as an offensive weapon was made until after the death 
of Stalin. 

Having removed most of Eastern Europe and mainland China 
from the aegis of Western political and economic influence, it 
was Stalin's theory that denial of this market to the West would 
undermine the economies of Free World nations and stimulate an 
internecine struggle among them for fragments of the remaining 
market. Trade with the West remained at the minimum necessary 
to meet military and domestic requirements of the Soviet Bloc. 

This "dual" or "parallel" markets theory was repudiated after 
the death of Stalin. Trade and aid have since been combined to form 
a cutting edge for the Soviet political wedge. Primacy is given 
to one or the other as the characteristics of the political target 
warrant. In almost every instance Bloc trade and aid have been 
skillfully controlled and coordinated. 5 

Bloc purchases in the West usually have been of raw materials, 
such as rubber and fats, processed items, such as oils, synthetic 
fibers, plastics and heavy chemicals; fabricated metals, such as 
plates and sheets, structural shapes and tubing; machinery, such 
as machine tools and electrical equipment; and major fabricated 
devices such as trawlers and locomotives. Interest has been demon- 
strated in purchasing entire plants with the technical information 
to operate them. These purchases often involve performances by 
two or more corporations, some furnishing design and machinery 
and others technical information and training necessary to operate 
the plant. 

Bloc strategy, as developed in the late 1950's, combined conquest 
by economic accretion with the "economic sortie" as inviting points 
of weakness in Free World nations appeared. The trading pattern 
of the target area is gradually reoriented towards the Bloc by 
increasing purchases of its products. These purchases usually are 



5 The most recent comprehensive studies of Soviet economic warfare are 
Allen, Soviet Economic Warfare (1960) and Allen, Communist Economic War- 
fare (1960) (Committee on Un-American Activities, H. R., 86th Cong., 2nd Sess. 
Doc. 51038). Also suggested are Aubrey, Co-existence (1961) ; Berliner, Soviet 
Economic Aid (1958) ; Benham, Economic Aid to Underdeveloped Countries 
(1961) ; Knorr, Ruble Diplomacy (1956) ; Kovner, The Challenge of Coexistence 
(1961) ; Mikesell and Wells, The Soviet Economic Offensive (1959) ; The Threat 
of Soviet Economic Policy (Department of State Publication 7234) (1961) ; 
and Communist Economic Policy in the Less Developed Countries (Department 
of State Publication 7020) (1960). Pisar, A New Look at Trade Policy Toivard 
the Communist Bloc (Sub-committee on Foreign Economic Policy of the Joint 
Economic Committee, U.S. Congress, Doc. 76695, 1961) is a recent and useful 
reference, although Mr. Pisar's emphasis upon economic warfare is subordinate 
to broader considerations of trade policy. 



90 

in dollars or other convertible currency to provide the initial attrac- 
tion. 

The Free World markets of the target area are restricted at the 
same time by selling the purchased products at a low price to 
customers of the target. Egyptian cotton, for example, has been 
sold by satellites below the world market price. 

As dependence upon Bloc trade in the target area increases, the 
Bloc offers long-term credits at low-interest rates and shifts trade 
to a barter basis. The use of credit probably stems from a desire to 
shift to barter rather than from a design to force the debtor into 
bankruptcy by insisting upon repayment at an awkward time. Yet 
the credit has coercive possibilities for future action by the Bloc. 

The size of the credit and its usual earmarking for "impact" 
projects generates publicity and conspicuously labels the benefit, 
such as an industrial plant or dam, as a contribution of the Bloc. 
Administration of the credit provides an opportunity to establish 
working relationships with key officials and influential organizations. 

As ties of the target area with the Free World are weakened, 
military assistance and grants in aid are commenced. Military as- 
sistance permits the introduction of large numbers of technicians, 
infiltration of the policy making and security institutions of the 
area, and neutralization or communization of influential governing 
groups. 

Economic penetration by the Bloc commenced with the aid pro- 
gram to Afghanistan in 1954. The program was extended to India, 
the UAR, Indonesia, Iraq, Ethiopia and Guinea. Technicians were 
provided for service in these countries and natives, both civilian 
and military, were received in Bloc schools. 

The Soviet Union, as of 1960, had extended credits or grants to 
Free World or "Uncommitted Countries" of approximately $3.1 
billion. The European satellites and Red China together had 
extended credits or grants of slightly over $1.0 billion, the aid 
extended by Red China being substantially larger than that of any 
European satellite. Although the credits have not been utilized 
fully, twenty-five Free World or "Uncommitted Countries" have 
received economic assistance from the Bloc. 

Bloc assistance may temporarily strengthen the economy of the 
country aided. This strength may become permanent. The Bloc 
program is too new to draw hard and fast conclusions about it. But 
the ultimate effects of Bloc aid and trade may be to disturb the 
political stability of the area. 

Industrial plants and public works have been particularly favored 
as forms of Bloc aid. Public works, with health and education 
services, are usually the forms of assistance most needed by under- 






91 

developed states to lay the foundation for political stability. But 
premature industrialization of an underdeveloped state, lacking law 
and conduct patterns not readily geared to the problems of an 
industrialized society, may stimulate chaotic conditions in which 
Communist political doctrines and institutions can obtain a secure 
foothold. Such chaos, if it can be distinguished from the turbulence 
usually associated with the creation of a new state, cannot at this 
stage be said to have resulted from Bloc aid and trade. Nor has 
the economic orientation of any Free World or "Uncommitted 
Country," other than Cuba, been changed sufficiently to be used as 
a base for Soviet political control. 

Soviet tugs on the reins of states thought to have been "enveloped" 
economically, such as Yugoslavia, Egypt and Albania, have not 
produced the effects one might reasonably expect. The present danger 
to the Free World is the divisive effect of Soviet Bloc economic 
warfare which stems from the high degree of flexibility and direc- 
tion which Bloc economic policies have demonstrated. 

Although the Bloc suffers from a disadvantageous disparity in 
material resources, and has significant weaknesses of its own, it has 
the advantage of ability to concentrate its economic power at points 
of weakness in the Free World. It also possesses organization which 
permits rapidity in decision and execution of policies. The Bloc 
is equipped to deliver economic sorties in addition to its slower 
technique of capture by economic accretion. 

The economic organization of the "free-enterprise" Free World, in 
which the United States is the mobilizing force, is by contrast 
keyed to a defensive policy in economic warfare. The United 
States policy, furthermore, is one of defense by protracted harass- 
ment of the opponent rather than of counterattack by "economic 
sortie." As Secretary of State Rusk, with specific reference to 
security controls, testified : 6 

* * * While our policy of control is a selective one and while 
we cannot expect to cripple Soviet Bloc economic or military 
power through an export control system, we can accomplish 
something useful if we recognize that our objective must be a 
limited one. That objective is to delay the development of 
Soviet military capability in selected areas where a coordinated 
denial policy by Western suppliers may have an impact. We 



6 Investigation and Study of the Administration, Operation, and Enforcement 
of the Export Control Act of J 949, and Related Acts. (Hearings before Select 
Committee on Export Control, House of Representatives, U.S. Congress, Doc. 
77836, 1962) 69. 



92 

cannot hope to erect an absolute barrier to Soviet advancements 
in military production; we can make it more difficult or more 
time consuming for the Soviets to make certain kinds of prog- 
ress. From this standpoint, the trade control operation is closely 
akin to the basic objective of our national defense policies — 
namely, the preservation and if possible the widening of the 
margin of advantage in time wherever we enjoy it in military 
capability. It is this margin in ultimate military power which 
is the hope of the West in the near term, and whatever con- 
tribution the trade control system has made to its maintenance 
is valuable. * * * 

2. The United States and the Free World: The Legal Response to 
Bloc Economic Warfare 

The basic laws by which the flow of trade between the United 
States and foreign countries is controlled for political objectives are 
the Export Control Act of 1949 7 and the Trading With the Enemy 
Act of 1917. 8 The Mutual Defense Assistance Control Act of 1951 
(Battle Act) 9 establishes the basis for the United States relation- 
ship with the Free World system of voluntary controls over the 
export of strategic goods to the Soviet Bloc and relates this program 
of trade restriction to the foreign aid program of the United States. 
Other laws, such as the Johnson Act, 10 prohibiting private loans to 
countries in default in payment of their obligations to the United 
States, have some political relevance but are of less importance in 
economic warfare. 

Export Control Act of 1949 

The Export Control Act of 1949 is administered by the Secretary 
of Commerce pursuant to authority delegated by the President. 
The Secretary of Commerce thus controls all exports except the 
following: Armaments, aircraft, special airborne equipment and 



7 63 Stat. 7 (1949) ; 50 U.S. Code App. 2021 et. seq. The act has been extended 
several times. 

s 40 Stat. 411 (1917) ; 50 U.S. Code App. 1 et. seq. 

9 65 Stat. 644 (1951). 

10 48 Stat. 574 (1934). Section 620(c) of the Foreign Assistance Act of 1961, 
75 Stat. 424 (1961), prohibits assistance to the government of any country 
which is indebted to any United States citizen for goods or services furnished, 
when such citizen has exhausted available legal remedies and the debt is not 
denied or contested by such government. 



93 

helium, which are controlled by the Secretary of State ; n atomic 
materials and facilities, controlled by the Atomic Energy Commis- 
sion ; 12 and narcotics 13 and gold, 14 controlled by the Treasury 
Department. 

Pursuant to powers delegated by the President under Section 
5(b) of the Trading With the Enemy Act of 1917, the Secretary 
of the Treasury controls shipments of strategic commodities by 
foreign subsidiaries of domestic corporations by the Foreign Assets 
Transaction Regulations 15 and the Transaction Control Regula- 
tions. 16 These regulations are enforced by action against the parent 
company in the United States. 

In Section 2 of the Export Control Act of 1949, the Congress 
expressed its policy to use export controls: 

* * * [T]o the extent necessary (a) to protect the domestic 

economy from the excessive drain of scarce materials and to 

reduce the inflationary impact of abnormal foreign demand; 



"68 Stat 848 (1954), 72 Stat. 267 (1958) ; 22 U.S. Code 1934 et seq. The 
munitions list and licensing regulations appear in 22 CFR, Part 121 et seq. 
Imports as well as exports of munitions are controlled by the Department of 
State. Arms reduced to scrap, by being rendered useless beyond the possibility 
of restoration to their former identity, are licensable as scrap by the Depart- 
ment of Commerce. Manufacturers, importers and exporters of the articles on 
the munitions list are required to register with the Secretary of State. Intransit 
licenses as well as export and import licenses are required. 

12 68 Stat. 936 (1954), 70 Stat. 1071 (1956), 72 Stat. 276 (1958) ; 42 U.S. Code 
2034 et seq. The controls over transactions in atomic materials are more 
stringent than any other since these materials are handled by the Atomic 
Energy Commission in a manner which amounts to a state-trading monoply. 

The exports controlled by the Commission are (a) source material, of which 
substantially none has ever been exported to the Soviet Bloc, (b) by-product 
material of which small medicinal quantities have been licensed for export, 
(c) special nuclear material, such as plutonium, which can only be exported by 
the Commission and is not subject to licensing and (d) facilities for producing 
and utilizing special nuclear materials, such as gaseous diffusion plants. 

Nuclear materials of a special character and production and utilization facili- 
ties may be transferred only to nations or organization with which the United 
States has agreements for cooperation under the Atomic Energy Act. There are 
no such agreements with the Soviet Bloc but there is such an agreement with 
the International Atomic Energy Agency to which Bloc countries belong. These 
countries could obtain these items through the Agency, in which case Agency 
controls would apply to assure that the items were used only for peaceful 
purposes. No such case has arisen, Bloc countries being unwilling to accept the 
controls required by the Agency. 

13 21 U.S. Code 171 et seq; 26 U.S. Code 2590, 3230 et seq. 

14 Gold Reserve Act of 1934, 48 Stat. 337 (1934), and 12 U.S. Code 95 a 
(section 5(b) of the Trading With the Enemy Act of 1917). 

15 31 CFR, Part 500. 

16 31 CFR, Part 505. 



94 

(b) to further the foreign policy of the United States and to 
aid in fulfilling its international responsibilities; and (c) to 
exercise the necessary vigilance over exports from the stand- 
point of their significance to national security. 
The Export Control Act has been used to control all commodities 
and technical data exported to other countries except Canada; to 
impose selective controls upon products shipped to the Soviet Bloc; 
and to embargo all shipments to Ked China, North Korea, North 
Vietnam and other Communist controlled areas in the Far East. 

The Department maintains a "Positive List" of commodities and 
data considered critical to the military power of the Soviet Bloc. 
Validated licenses for listed items are required for each trans- 
action. For items not on this list, general licenses are issued. Gen- 
eral licenses authorize conditional export to specified destinations 
without the necessity of obtaining a special license for each export 
transaction. 

The activities of the Department of Commerce in export control 
are coordinated with those of other departments and agencies 
through an Advisory Committee on Export Policy (ACEP). 
Membership is on the Assistant Secretary or Deputy Assistant 
Secretary level. 

The Departments of Agriculture, Defense, Interior, State and 
Treasury, and the Federal Aviation Agency and National Aero- 
nautical and Space Agency are represented. The Committee Chair- 
man is the Assistant Secretary of Commerce for International 
Affairs. 

Day-to-day coordination is provided by an Operating Committee 
with representatives from the Departments and Agencies participat- 
ing in the Advisory Committee plus observers from the Atomic 
Energy Commission and Office of Economic Planning. The Chair- 
man of the Operating Committee is the Director of the Export 
Policy Staff of the Office of the Director of the Bureau of Inter- 
national Programs in the Department of Commerce. The Operating 
Committee meets on call or the members may consult informally. 

A third body, established by Executive Order, is the Export Con- 
trol Keview Board, consisting of the Secretaries of Commerce, 
State and Defense, with the first as Chairman. Policy matters are 
channeled through all three levels of decision. 

These policy matters include such things as additions to or 
deletions from the "positive list'* and control problems affecting 
particular countries or areas. A question of granting or denying 
a particular license might or might not involve a broad policy 
matter. A license, for example, would be considered in the Operating 



95 

Committee if a licensing officer was unable to determine readily 
from the positive list that it should be denied or granted. If all 
members of the Operating Committee concur, the matter ends there, 
although if the license is approved, it must go to the Secretary 
of Commerce for final approval. If a member of the Operating 
Committee dissents, the matter goes to the Advisory Committee 
on Export Policy (ACEP). 

The same procedure is followed in the Advisory Committee. If 
a member of the Advisory Committee dissents, the matter is re- 
viewed by the Export Control Review Board. Matters of great 
importance might be referred by the Board to the National Security 
Council or to the President. The Secretary of Commerce can make 
the final determination on the Export Control Review Board. In 
practice a unanimity rule has been followed. 

The major sanction supporting the export licensing system is 
denial of an export license. This denial may be for a short period 
or for the duration of the Act. Notice and a hearing are required. 
Criminal sanctions are also provided but are difficult to apply 
because much of the evidence must come from foreign sources and 
is not readily obtainable. Customs officials can seize and condemn 
goods being exported or about to be exported in violation of the 
Act and a vessel carrying prohibited goods can be required to 
return to port and discharge unlicensed cargo. 

Information required to enforce the Act is obtained from various 
sources, including United States Intelligence Agencies, Economic 
Defense Officers of the Foreign Service in posts overseas, and the 
F.B.I. The Department of Commerce also has its Commercial 
Intelligence Division. 

Trading With the Enemy Act of 1917 

The controls over exports applied pursuant to the Export Con- 
trol Act of 1949 can also be developed under the Trading With the 
Enemy Act of 1917. This Act is intended principally as a basis 
for interdicting private communications between persons in the 
United States and an enemy or ally of an enemy during a war 
declared by the Congress. Section 5(b) of this Act, added in 1933, 
confers broad powers upon the President in time of peace as well. 

To bring Section 5(b) into operation, the President must declare 
an emergency. A declaration of a national emergency was made by 
the President in 1950 and is still in force. The provisions of Section 
5(b) thus continue to operate. 

The powers conferred upon the President by Section 5(b) are: 
(1) Investigate, regulate or prohibit any transaction in foreign 



96 

exchange, transfer of credit or payment between, by, through, or 
to any banking institution, and the importing, exporting, hoarding, 
melting, or earmarking of gold or silver coin or bullion, currency or 
securities; and (2) Investigate, regulate, direct and compel, nullify, 
void, prevent or prohibit, any acquisition holding, withholding, use, 
transfer, withdrawal, transportation, importation or exportation of, 
or dealing in, or exercising any right, power or privilege with 
respect to, any transaction involving any property in which any 
foreign country or national thereof has any interest. 

The President has delegated his powers under this section to the 
Secretary of the Treasury. As previously noted, transactions in gold 
are controlled pursuant in part to these provisions. 

Likewise foreign trade transactions in strategic commodities by 
foreign corporations effectively controlled by domestic corporations 
are subject to license under 5(b). 17 Enforcement action is against 
the domestic corporation. The effective control may be through 
stock ownership or perhaps by patent licenses. Financial controls 
have been imposed pursuant to this Section to block assets of Red 
China, North Korea and their nationals in the United States and 
to impose controls upon imports originating from these countries. 18 

Exceptions can be made by Treasury licenses, but the boycott on 
Red Chinese and North Korean goods has been total. Section 5(b) 
of the Trading With the Enemy Act is thus like an accordion which 
can be stretched or compressed as required to block imports or 
exports and control financial transactions as determined by the 
President. 

Battle Act 

The Battle Act is administered by the Assistant Secretary of 
State for Economic Affairs. The purpose of this statute is to deny 
strategic commodities to the Soviet Bloc by bringing pressure upon 
countries receiving any form of United States aid to embargo these 
items. The Battle Act lists are revised from time to time to take 
account of economic and scientific progress within the Bloc. The 
latest revision was in 1960. 



17 The restricted transactions are described in 31 CFR 505.10 as " * * * mer- 
chandise * * * included in the Positive* List of Commodities set forth in 15 CFR 
Part 399 and * * * identified on that list by the letter "A" in the column headed 
'Commodity Lists' or is of a type the unauthorized exportation of which from 
the United States is prohibited by any of the several regulations referred to in 
15 CFR 370.4." These descriptions include only items of major strategic im- 
portance. The Treasury restrictions change as the Positive List is modified. 

18 Transactions are also controlled in property in which either Egypt or the 
Suez Canal Company has an interest. 31 CFR, Part 510. 



97 

The critical features of the Act are: (1) selective controls such 
as those used in the Export Control Act of 1949; (2) termination 
of assistance to countries which ship interdicted items to the Bloc, 
(a) on a mandatory basis if the shipment is on Battle Act List "A," 
armaments, atomic materials, etc., and (b) on a discretionary basis 
if the shipment is of materials on Battle Act List "B," the President 
having authority not to terminate if he finds unusual circumstances 
indicating that curtailment of aid would be detrimental to the 
security of the United States; and (3) creation of an administrative 
center to coordinate the controls of the United States with those of 
the remainder of the Free World. There have been no terminations 
of aid under the Battle Act, no items on List "A" having been 
shipped and the President having found unusual circumstances in 
shipments of items on List "B." 

Although the Act, no doubt, has deterred some Free World ship- 
ments of strategic goods to the Soviet Bloc, its important effect has 
been the development of a coordinating center, the Economic Defense 
Advisory Committee (EDAC), paralleling in some respects the 
Advisory Committee on Export Policy (ACEP) which functions in 
the administration of the Export Control Act of 1949. However, 
there is no special review board above EDAC. 

The Assistant Secretary of State for Economic Affairs, Ad- 
ministrator of the Battle Act, serves as Chairman of EDAC. The 
Committee contains representatives of the Departments of Defense, 
Commerce and Treasury, the Atomic Energy Commission and 
Central Intelligence Agency, and other departments or agencies 
interested in particular questions subject to consideration. 

There is a subsidiary executive committee, dealing with questions 
not requiring resolution by EDAC as a whole, and two working 
groups. The first deals with international export control systems, 
and the second deals with enforcement and transshipment questions 
having an international aspect. 

EDAC is used to reach interdepartmental and agency agreement 
concerning instructions to field representatives dealing with the 
international control system for strategic materials and to obtain 
advice on Battle Act questions. For example, questions concerning 
the licensing of transactions in strategic materials by foreign cor- 
porations effectively controlled by domestic corporations are referred 
by the Treasury Department to EDAC for recommendation. 

International Control Structure for Strategic Trade 

The international control structure with which EDAC main- 
tains liaison existed before passage of the Battle Act. This is the 



98 

Consultative Group (CG), an informal voluntary organization of 
fifteen Free World states, including the United States. 19 

The Group has operating under it a permanent working com- 
mittee, described as the Coordinating Committee (COCOM) when it 
deals with exports to the Soviet Union and the European satellites 
and CHINCOM when it deals with exports to Red China, North 
Korea and North Vietnam. The unanimity rule applied to all but 
procedural questions and the obligations of the fifteen participating 
states are moral only. 

Until 1957 a differential existed between embargoed items to the 
European Soviet Bloc and embargoed items to Red China. This was 
abandoned because of pressure by a number of Consultative Group 
members. 20 

There are currently two International Lists (IL). List I contains 
embargoed items. List IV is a "Watch" list of items which are 
maintained under surveillance. Lists II and III (quantitative and 
surveillance control items) were abolished in 1959. 

A number of supplementary controls are used. By the Import 
Certificate-Delivery Verification System (IC/DV) a Consultative 
Group state, before granting a license to export a controlled item, 
requires the exporting firm to present an import certificate, executed 
by the importing firm and certified by the state of destination. The 
certificate states that the shipment is actually destined for the state 
indicated and will not be diverted or reexported. The exporting 
country may also obtain a certificate of delivery verification in 
which the importing state certifies that the goods were actually 
delivered to the destination licensed. 

Many of the Consultative Group states also require Transit 
Authorization Certificates (TAC) for goods originating in member 
states and on the embargo list passing through the territory of 
another member en route to the Soviet Bloc. The TAC is issued by 



19 Belgium, Canada, Denmark, Federal Republic of Germany, France, Greece, 
Italy, Japan, Luxembourg, Norway, Portugal, The Netherlands, Turkey, United 
Kingdom, United States. The system began with an Anglo-French list estab- 
lished in 1949. Each cooperating country has its own national control list. All 
the NATO signatories except Iceland belong to the Consultative Group. 

20 On May 18, 1951, the General Assembly of the United Nations recommended 
that every state apply an embargo on shipments to Red Chinese and North 
Korean areas of "arms, ammunition and implements of war, atomic energy 
materials, petroleum," transportation resources, and items useful in arms pro- 
duction. At one time a strategic embargo on these items was applied by 45 
states, but after the Korean Armistice in 1953 the restrictions were rapidly 
jettisoned. CHINCOM was formed within the Consultative Group during this 
period of general embargo upon items of military use. At one time approxi- 
mately 200 more items were on the CHINCOM list than on the COCOM list. 



99 

the state of export and submitted to the state of transit. Transaction 
controls, such as those maintained by the United States, are also 
maintained by several other Consultative Group states. Shipping 
and bunkering controls were imposed by members for several years 
to restrict commerce with Red China. 

The United States maintains a permanent delegation to COCOM- 
CHINCOM which is directed by the Department of State with the 
advice of EDAC. The International Lists are revised annually and 
the United States delegation participates in this revision. 

The tendency has been to reduce the number of embargoed items 
and to permit freer trade with the Soviet Bloc. This is due in part 
to the expanding industries of the European Consultative Group 
members and of Japan, the considerable dependence of these states 
upon foreign trade, and a shortage of foreign exchange by which 
supplies, particularly raw materials, can be purchased in the West. 
These states now receive no economic aid and the Battle Act has 
not been invoked to press them towards more restrictive controls 
because this would involve a withdrawal of military aid only. In 
the words of Secretary Rusk : 21 

* * * The United States has consistently pressed for a some- 
what more restrictive policy than most of the other members 
of COCOM would accept. We have had, therefore, to balance 
the advantages of maintaining the COCOM system in order 
that our influence might keep those restrictions as strong as 
possible, or letting the system disappear and finding that the 
COCOM controls might gradually wither away. * * * 
The Battle Act has been helpful in influencing the policies of 
states which are not members of the Consultative Group, although 
the Bloc trade with these states in goods of a strategic nature has 
been relatively small. 

The United States, consequently, has fallen back to a unilateral 
position with respect to its trade restrictions with the Soviet Bloc. 
The "Positive List" of the Department of Commerce is based only 
in part upon the International Lists and contains items which the 
International List does not embargo. A total embargo and boycott is 
maintained on trade with Red China, North Korea and North 
Vietnam, although such restrictions are not imposed by the other 
Consultative Group states. 
Validated licenses rather than Transit Authorization Certificates 



21 Investigation and Study of the Administration, Operation, and Enforcement 
of the Export Control Act of 191fi, and Related Acts (Hearings Before Select 
Committee on Export Control, House of Representatives, 87th Cong., 1st Sess. 
Doc. 77836, 1961), 73. 



100 

are required for the transit of goods for which validated export 
licenses are required. American petroleum companies are prohibited 
from bunkering any vessel bound to or from Communist Far 
Eastern ports or Macao without a Treasury license and a validated 
license from the Department of Commerce is required for bunker- 
ing vessels or fueling aircraft which have called or will call at 
Far Eastern Communist ports within stated time periods. 22 

Coordination of Aid Program and Trade Controls 

The aid program of the United States is coordinated with the 
program of trade control through EDAC. The Director of the 
International Cooperation Administration was at one time Ad- 
ministrator of the Battle Act and participation in the work of 
EDAC by representatives of the Agency for International Develop- 
ment (AID) created pursuant to the Act for International Develop- 
ment of 1961 23 will no doubt occur. The Secretary of State is 
responsible under the Act for International Development for con- 
tinuous supervision and general direction of the assistance programs 
which the Act authorizes and integrating these at home and abroad 
so the foreign policy of the United States is best served. 

Prior to the Act for International Development of 1961 and 
following World War II, the aid programs of the United States 
emphasized: (1) reconstruction of the economies of wartime allies 
(as in the Greek-Turkish aid program and the European Recovery 
Program) ; (2) increasing military defenses of Free World coun- 
tries; and (3) encouraging the economic development of under- 
developed countries, now usually described as "less developed" 
countries. The Military Assistance Program and economic aid to 
support military defense efforts were the largest aid projects during 
the 1950's. 



22 See The Strategic Trade Control System, 1948-1956: Mutual Defense As- 
sistance Control Act of 1951, Ninth Report to Congress (1957), 35-37; 15 CFR 
371.13(2) and 371.13(3) (b)(2). 

23P.L. 87-195, Sept. 4, 1961; 75 Stat. 424 (1961), Part I (1961). The entire 
Act is described as the Mutual Security Act of 1961. Part II of the law has the 
short title, "International Peace and Security Act of 1961." The Agency for 
International Development, which administers Part I, was established by Ex. 
Or. 10973, 26 FR 10469 (1961). The Agency supersedes the International Co- 
operation Administration and the Development Loan Fund. The functions of 
the Export-Import Bank relating to loans under section 104(e) of the Agricul- 
tural Trade Development and Assistance Act of 1954, 68 Stat. 454 (1954) ; 7 
U.S. Code 1961 et seq. (1954), often called "P. L. 480" have also been trans- 
ferred to the Agency. While the functions of the Agency are more embracing 
than those of International Cooperation Administration, it continues as part of 
the Department of State, its Administrator having the status of an Under 
Secretary of State. 



101 

These programs are now superseded in importance by attention to 
the "less developed" countries — using development loans, grants 
and technical cooperation; encouraging private investment by Fed- 
eral guaranties against inability to convert earnings to dollars, 
foreign expropriation or confiscation, and loss due to war, revolution 
and insurrection; financing private business surveys; encouraging 
research; and contributing to the work of International Organiza- 
tions in "less developed*' countries. The Military Assistance program 
is continued, $1,700,000,000 being appropriated by the Congress to 
this purpose for each of the fiscal years 1962 and 1963. The program 
is administered by the Department of Defense under the general 
negotiating and coordinating authority of the Secretary of State. 

The Foreign Aid program, apart from its military aspects, now 
seems aimed to achieve global environmental changes. The countries 
aided are permitted to formulate their individual plans for develop- 
ment. They are given advice as to reforms; but each is encouraged 
to develop its own image of a "free society." 

Unlike earlier programs, which were geared to Soviet Bloc 
political movements, the current aid trend seems to recognize the 
menace of Communist action but to divorce substantially the United 
States aid program from a pattern of response. As stated by the 
President's Task Force on Foreign Economic Assistance : 24 

It is important that the United States, in its desire to offset 
these dangers, not engage in a frantic competition to outbid the 
Bloc's offers of aid or seek to prevent countries from accepting 
aid that will help them. To react this way would involve us in 
waste, draw us into an undignified posture, and open us to the 
charge of not being sympathetic to the economic development of 
other countries except on our own political terms. The size and 
effectiveness of the Communist effort are reasons for concern and 
self-examination but not alarm. They emphasize the need for 
the United States to make its aid as effective as possible, timely, 
vigorous, and responsive to short-term as well as long-term con- 
siderations. If we do these things and our actions are con- 
tractive and politically wise, the aid coming from the Communist 
Bloc should not worry us. The increasingly effective Bloc effort 
is a challenge and a reminder to the United States that it 
cannot afford to make anything less than a major effort, designed 
and administered in such a way as to achieve maximum results 
of the right kind. 
Broad and flexible authority is conferred upon the President in 

24 An Act for International Development, A Summary Presentation, June 1961 
(Department of State Publication 7205), 189. 



102 

the Acts for International Development and International Peace 
and Security, including authority to give certain kinds of aid sub- 
ject to limitations in amounts despite the provisions of the Battle 
Act. 25 There is also broad authority to give "supporting assistance" 26 
from a contingency fund; and authority to use $50,000,000 for the 
funds appropriated for purposes which he need not disclose upon 
certification. 27 Action of a nature which would no£ be disclosed might 
be taken in economic warfare by the Central Intelligence Agency 
or some similar executive institution. However, because of its gen- 
eral object to secure massive environmental changes, the Aid 
structure does not seem to be readily adaptable for coordination 
with a program of trade restriction, even though EDAC is available 
for that purpose. 

Current Economic Warfare Posture 

The present economic warfare posture of the United States is 
one of attempting to buy "lead time" by impeding the development 
of Soviet Bloc economies through use of a program of export and 
import controls. This "lead time" is used by subsidizing its scien- 
tific development; improving the defensive capacity of its allies; 
and by a massive effort to change the environments of "less de- 
veloped" and uncommitted countries. 

The idea that wealth might be used offensively, or might be care- 
fully focused for political ends, seems not to have been entertained 
seriously in the program. Congress has retained much control 
over the trade control and aid programs by reporting requirements 
and investigations. This control perhaps has discouraged initiative 
in the offensive use of wealth in situations sensitive in domestic 
politics. 

It is unlikely that this United States defensive structure will 
undergo more than the slow mutations exhibited since World War 
II. Thus, any flexibility which can be developed to fend and return 
skillfully engineered Soviet Bloc "economic sorties" will have to be 
derived from laws which have never been fully utilized. One of 
these is Section 5(b) of the Trading With the Enemy Act of 1917. 
Other treaties and domestic laws remain to be explored by the 
responsible administrators. There will be a premium upon ingenuity 
and speed in administrative interpretation of existing laws. 

In the past decade of active political application by the Soviet 
Union and Bloc states of their increasing economic strength in 
foreign affairs, intervention by the Soviet Union in support of the 

25 P.L. 87-195, Sept. 4, 1961 ; 75 Stat 424 (1961), section 614 a. 

26 Id., sections 401, 402, 451. 

27 Id., section 614 c. 



103 

Castro regime in Cuba demonstrates the purpose and skill with 
which Bloc economic power can be brought to bear to support 
Communist political objectives. The case suggests also the im- 
portance of administrative ingenuity and speed in the United States 
in utilizing hitherto unutilized laws in economic warfare. The perils 
of defensive, cautious and well-meaning economic policies when 
opposed to an aggressive, carefully aimed, and coordinated Com- 
munist "economic sortie" are amply demonstrated. 

B. SUGAR ECONOMIES OF CUBA AND THE UNITED STATES: 
THE LEGAL MILIEU FOR WEALTH BALANCE 

The Cuban economy is based substantially upon the production 
and export of unrefined sugar. Cuba is the major sugar exporter and 
is second only to the Soviet Union as a sugar producer. In 1959, 
the first year of the Castro revolution, Cuba produced 6,577,000 
tons. Of this production, 3,437,582 tons, or slightly more than half, 
was exported to the United States. 

The United States is a closed sugar market. This means that 
both production of sugar within the United States and its posses- 
sions and imports into these areas are limited. The limitations are 
to maintain the domestic sugar price and to develop dependable 
sources of supply. 

Sugar Act of 19^8 

The production and marketing of sugar within the United States 
was regulated in 1959 by the Sugar Act of 1948. 28 This Act 
originated as the Jones-Costigan Amendment to the Agricultural 
Adjustment Act, 29 and was carried over as the Sugar Act of 1937 
when the Agricultural Adjustment Act was held unconstitutional by 
the United States Supreme Court. 

By the Sugar Act of 1948, as in force with amendments in 1959, 30 
the Secretary of Agriculture determined in December of each year 
the probable sugar consumption in the United States for the year 
following. This tonnage was then divided up among domestic and 
foreign producers in accordance with a quota system set forth in the 
statute. 

The statute established the basic need of the United States for 
sugar at 8,350,000 tons. Although the actual sugar consumption at 



28 61 Stat. 922 (1947). 
M 46 Stat. 670 (1934). 

30 Amendments at the end of 1961 appear in 65 Stat. 318 (1951) ; 70 Stat. 217 
(1956) ; 74 Stat. 330 (1960) ; and 75 Stat. 40 (1961). 



104 

the time the statute was passed was greater than this, and ever 
since has greatly exceeded this figure, domestic and import quotas 
were computed in relation to this tonnage. 

A minimum quota for domestic producers was established in 
the statute at 4,444,000 tons. This minimum quota was allotted 
among domestic beet producers (1,800,000), mainland cane pro- 
ducers (500,000) and the remainder among cane producers in Hawaii, 
Puerto Rico and the Virgin Islands. To this minimum quota was 
added 55% of the amount by which the probable sugar consumption 
as determined by the Secretary of Agriculture exceeded the "basic 
statutory" need of 8,350,000 tons. A quota of 952,000 tons was 
established for the Republic of the Philippines. 

Cuba received 96% of the amount by which the basic statutory 
need of 8,350,000 tons (or a lesser amount determined by the 
Secretary as the actual probable consumption) exceeded the mini- 
mum quota for domestic producers (4,444,000) plus the quota for 
the Philippines (952,000). Cuba also received 29.59% of the amount 
by which the actual probable consumption as determined by the 
Secretary exceeded the basic statutory need (8,350,000). This addi- 
tional tonnage has always been substantial. 

A minimum Cuban quota was fixed at 28.6% of the total United 
States consumption estimated by the Secretary if this estimate was 
7,400,000 tons or less; and at 2,116,000 tons if the actual consump- 
tion was estimated at more than 7,400,000 tons. The quota of do- 
mestic producers was to be reduced pro rata to make up the mini- 
mum Cuban quota, although the Cuban quota has always been well 
above 2,116,000 tons. 

Foreign producers, other than Cuba and the Philippines, received 
4% of the amount by which the basic statutory need (8,350,000) 
exceeded the minimum quota for domestic sugar producers plus 
the quota of the Philippines. This foreign producer quota was 
prorated in accordance with a statutory scale. 

Of the amount of probable consumption in excess of the basic 
statutory need (8,350,000) allocated to these less favored foreign 
producers, the Dominican Republic received 4.95%, Peru 4.33%, 
Mexico 5.10% and the remaining 1.03% was divided among other 
foreign suppliers by a formula biased upon experience with their 
tonnage exported to the United States under earlier quota alloca- 
tions. 

If a domestic producer or foreign supplier failed to fill its quota, 
the deficit was allocated among other quota holders. If a domestic 
producer or Cuba defaulted, the reallocation was made first to 
domestic producers. If they would not fill the new quota, the 
allocation was to Cuba. If the Philippines failed to fill its quota, 



105 

Cuba was allocated 96% of the deficit and the other foreign pro- 
ducers received 4%. If any foreign producer other than the Philip- 
pines failed to fill its quota, the entire deficit went to Cuba; and 
if Cuba could not fill the deficit, the Secretary could allocate it. 

Under the Sugar Act of 1948, Cuba thus enjoyed marketing 
privileges comparable to those of domestic producers. Sugar con- 
sumption in the United States was rapidly increasing. Assuming 
continued controls upon the acreage of domestic producers, and 
no significant breakthroughs in methods of production, Cuba could 
reasonably expect an expanding and lucrative United States market. 

The United States market had special appeal for all foreign sup- 
pliers because of its high sugar price. By manipulating his estimates 
of probable annual consumption, the Secretary of Agriculture, 
although he could not control prices directly, nevertheless controlled 
them indirectly by increasing or decreasing domestic and import 
quotas, subject to the minimum quotas established. By this method, 
the Secretary maintained the United States price at about 2 cents 
per pound above the world market. 

While all foreign suppliers having quotas enjoyed this price 
advantage, Cuba also received a 20% tariff preference on sugar 
imported into the United States. This preference was based on a 
treaty made in 1902. 31 A tariff of 4/8 of a cent per pound was thus 
levied on Cuban sugar as compared with 5/8 of a cent per pound 
on the sugar of all other foreign suppliers except the Philippines. 32 
In 1959, this privileged position of Cuban producers enabled them to 
make approximately $159,000,000 more upon that part of the crop 
sold in the United States than if the sales had been on the world 
market. 

The favored position of Cuba stemmed in part from recognition 
of historic patterns in the sugar trade and in part from the close 
friendship existing between the two countries. But the favored 
position of Cuba was founded also upon intensely practical con- 
siderations. 

There were important business reasons for the Cuban preference. 
Cuba was a major consumer of United States exports. Approximately 
4/5ths of Cuba's visible imports came from the United States and 



31 33 Stat. 2163 (1903-5). 

32 By the Philippine Trade Act, 60 Stat 141 (1946) the Philippine quota is 
set at 982,000 tons annually for the period 1 January 1946 through 3 July 1974. 
Until 3 July 1954 the sugar was admitted duty free. For the remainder of 1954 
the rate was 5% of the lowest rate charged another country. For 1955 the rate 
was 10% of the lowest rate charged any other country ; and each year there- 
after it is increased 5% until it reaches 100% on 1 January 1973. 



106 

were principally in machinery, motor vehicles, cotton manufactures, 
rice, wheat, flour and lard. The Cuban sugar preference supplied 
dollars which could be used to pay for these products. Investments 
by United States citizens in Cuba were greater than in any other 
country in the Western Hemisphere except Canada. These investors 
benefitted by Cuban trade with the United States which in turn 
depended largely upon the sugar preference. 

United States nationals owned 36 out of the 116 mills producing 
raw sugar in Cuba. The United States corporations owning these 
mills also owned much land upon which sugar cane was raised. 

The Atlantico del Golfo and Rionda Groups of American Sugar 
Mills held approximately 500,000 acres each. Cuban- American Sugar 
Company held 330,000 acres ; and the United Fruit Company 226,000 
acres. A preference for Cuban sugar meant a preference directly for 
a substantial number of United States stockholders. 

There were important strategic grounds for the Cuban preference. 
Communist influence had been present in Cuba from the early years 
of the Depression of 1929. Special privileges for Cuban sugar 
producers in the United States market created jobs and established 
a wage level which would not have been possible if all of Cuba's 
sugar production had been sold on the world market. 

Although the standard of living for most Cubans remained quite 
low, the standard was higher than in most of the rest of Latin 
America, and would have been lower without the United States 
market preference. With a decreasing standard of living, Cuba 
might have become increasingly vulnerable to Communist infiltra- 
tion, although the pattern of Communist conquest has since suggested 
that its major appeal is to educated groups with a relatively high 
living standard. 

In addition to its familiar use as food, sugar is also used in the 
manufacture of plastics, drugs, antifreeze, synthetic rubber, ethyl 
alcohol and numerous other products important in national defense. 
About one acre of cane produces the ethyl alcohol needed to man- 
ufacture smokeless powder sufficient to propel fifteen five-inch shells. 

Cuba has supplied about % of the total sugar needed for food 
and manufacturing in the United States and has done this at stable 
prices during periods of international crisis. The geographic posi- 
tion of Cuba simplifies the protection of cargo vessels transporting 
sugar to the United States. Shipping costs and insurance rates 
during wartime tend to be lower. Cuba was a relatively secure and 
dependable source of sugar and the United States was anxious to 
encourage and protect its reliable foreign supplier. 



107 

World Sugar Market 

The bulk of the world sugar production is sold in closed markets 
such as in the United States under the Sugar Act of 1948. The most 
important of these are created by the British Commonwealth and 
French Agreements, although the sugar sales by Cuba in these 
markets would under any circumstances be less than in the United 
States. The trade between the Soviet Union and its satellites has 
some of the characteristics of a closed market since this trade is in 
barter or in nonconvertible currencies. For this reason trade in a 
Bloc market is not desirable for a country which expects to purchase 
Western goods. 

Only about 10% to 15% of the world sugar production is sold in 
the "world" or "free" market, although it was here that much of 
the Cuban sugar production was marketed. Sugar prices in the 
free market tend to be both low and erratic. 

The depressed free market price is caused by chronic overproduc- 
tion of sugar. World sugar production was 64,625,000 tons in 1959. 
Of this, 7,494,000 was thrown on the free market, although there was 
a free-market sale of only 6,283,000 tons. 

For the ten years between 1950 and 1960, world sugar consump- 
tion increased at about 5% per annum. World sugar production 
increased at about 10% per annum. Per capita sugar consumption 
is low in many countries — about three pounds per capita in Red 
China as compared with one hundred and one pounds per capita 
in the United States. This low consumption in the "under" or "less" 
developed countries may increase. A parallel increase in sugar 
production is also forecast. However, the supply is likely to con- 
tinue to exceed the amount marketable. A number of countries, 
such as West Germany and India, were finding it difficult to market 
their sugar surpluses in 1961, although they had experienced no 
major marketing difficulty in previous years. 

The erratic prices on the free market are due principally to 
weather and world tension. A prolonged drought in Eastern Europe 
in 1960 raised the price of beet sugar on the free market by reducing 
the supply. 

When the Batista government was overthrown in 1959, the free- 
market price of sugar was 3.67 cents per pound. This unusually 
high price for the free market resulted from the threat to the 
Cuban supply from Castro's burning of cane fields. The price 
dropped to 3.1 cents per pound in February 1959, when the Cuban 
supply was thought assured by Batista's overthrow. 

In World Wars I and II, the Korean War and the Suez Crisis, 



108 

the free-market price jumped appreciably. The price declined with 
alacrity when tensions were reduced. 

Because of fluctuations in the free-market price, attempts have 
been made to attain price stability by a series of multilateral 
treaties. Cuba and the United States have joined in all since the 
first treaty in 1937. 

The International Sugar Agreement in force in 1959 33 permits 
an International Sugar Council to set export quotas in the free 
market. These quotas may be above or below a basic tonnage for 
exporting countries which the Agreement specifies. 

A minimum desired free-market price is set at 3.25 cents per 
pound. If the price on the free market dips below this for seventeen 
successive business days, the Council is required to cut export quotas 
by 2y 2 % and is permitted to cut quotas by 10%. If the price falls 
below 3.15 cents per pound, the Council may cut export quotas up 
to 20%. This is the maximum cut permitted. Exporting countries 
(such as Cuba) agree to limit production and exports; and import- 
ing countries (such as the United States) agree to restrict imports 
from nonparticipating sources. All important sugar producers, with 
the exception of Red China, are parties to the Agreement. 

The Sugar Council meets periodically to consider quotas. Voting 
in the Council is weighted. One thousand votes are allocated to 
sugar exporters (including Cuba) and 1,000 votes to sugar im- 
porters (including the United States). The number of votes allocated 
to each participating country differ. As importers, the United States 
and the United Kingdom each have 245 votes as compared to 10 
votes for Ghana. Cuba has 245 votes as a sugar exporter, compared 
with 95 votes for the Soviet Union and 10 votes for Haiti. 

Provisions are liberal for withdrawing from the Agreement after 
notice by the withdrawing party. Cuba, for practical purposes, is 
an essential party to the Agreement. Without Cuban participation 
the free-market price would be unduly difficult to stabilize. 

Cuba has the largest free-market quota. This is 2,415,000 tons, 
subject to reconsideration in 1962. 34 So long as Cuba desires to sell 
sugar on the free market, it is probably in her interest to remain a 
party to the Agreement. If Cuba desires to withdraw from the 
Agreement and depress the world price by dumping her marketable 
sugar, there is no way in which this withdrawal can be prevented. 
But dumping her marketable sugar on the market without a formal 



s 3 10 U.S. Treaties 2189. 

34 The Cuban quota was actually reconsidered in December 1961 on a special 
Cuban request for a quota increase to cover its sales to the Soviet Union. There 
being no agreement on this increase in the Council, the Sugar Agreement ap- 
peared on the verge of collapse. 



109 

withdrawal from the Agreement pursuant to its terms would place 
Cuba in violation of a treaty obligation. 

Since 1959, the free-market price has tended to fluctuate below 3 
cents per pound. Under these circumstances, parties to the Agree- 
ment may take unilateral action to limit exports. Cuba, in 1960, set 
3.25 cents per pound as the price for Cuban sugar on the free market 
and the Cuban Sugar Stabilization Institute made substantial pur- 
chases to reduce the amount available for export. Because the cost 
of production of raw sugar in Cuba was approximately 4 cents per 
pound in 1959 and 1960 and the free-market price was substantially 
below this, the 2 cents per pound premium which Cuban sugar 
brought in the closed United States market was essential to make 
production profitable. 

C. CUBAN-COMMUNIST ECONOMIC AGGRESSION AND THE 
RESPONSE OF THE UNITED STATES IN 1959 AND 
EARLY 1960 

Despite the clear dependence of the Cuban sugar industry upon 
the closed market of the United States, the difficulties involved in 
diversifying agriculture and developing new industries in Cuba, and 
the evident interest of the United States in continuing Cuban sugar 
preferences, the Castro regime, sparked by its Communist elements, 
began a hostile campaign against the United States early in 1959. 
This campaign was designed ultimately to disrupt relations between 
the United States and Cuba, neutralize the power of Cuban mod- 
erates, and pave the way for Cuban entrance into the Soviet Bloc. 

Pending the purge of moderate adherents to the regime and 
liquidation of the Cuban political opposition, and until a mini- 
mum program of Soviet economic assistance to Cuba could be 
developed, it was important to Castro that Cuban preferences in 
the United States sugar market be preserved. The preferences were, 
however, regarded as a fulcrum for political leverage by the United 
States and thus incompatible with the radical reorientation planned 
for Cuban political relations. The preferences were desired by Cuba 
only as an interim device to develop foreign exchange. Cuban hold- 
ings of foreign exchange were low due to withdrawals by Batista 
officials. These holdings were further diminished by the inept man- 
agement of the Castro government. 

Castro thus had to deal with a delicate problem of balance — 
disturbing relations with the United States sufficiently to justify 
his Communization of the Cuban government and liquidation of the 
labor unions and other potential sources of opposition while at the 
same time keeping the Cuban sugar quota as long as possible to tide 



110 

him over the thin years which the revelation of his Communist ties 
would probably bring. 

The Castro regime accordingly commenced an economic offensive. 
This was designed to disturb the psychical equilibria of officials in 
the United States and delay the response of the Administration 
as the Communist ties of the regime received publicity. 

Cuban representatives contended, first, that the Cuban sugar quota 
should be removed from the Act of 1948 and incorporated into a 
new bilateral treaty between Cuba and the United States. The 
ostensible purpose of this move was to prevent fluctuations in the 
Cuban quota by removing it from the influence of domestic politics. 

The actual purpose was to develop an international legal argu- 
ment to assert to forestall future disciplinary cuts in the quota. 

Restoration of the Cuban sugar preferences as these existed 
before 1956 was also sought. The Sugar Act of 1948 had been 
amended in 1956 to limit Cuba's "deficit quota'* to 29.6% of the 
excess above the basic 8,350,000 tons; 96% of this excess had been 
allocated to Cuba prior to 1956. While Cuba sold more sugar in 
the United States after 1956 than before, this increased sale had 
been due to an increased United States consumption. A return to 
the earlier formula would greatly increase Cuban sugar sales 
during 1960. 

These demands by the Castro regime fell upon deaf ears both in 
the Administration and in Congress. Concern as to the nature and 
direction of the Castro movement had been stimulated during the 
late winter and early spring of 1959. Earlier hopes for moderation 
by Castro as the heat of victory subsided, were salted with pro- 
found skepticism concerning his personal qualities as a leader and 
uncertainty concerning the political orientation of many of his 
principal advisers. 

Faced with this gradual loss of sympathy and confidence, and 
with the negative response to his efforts to secure guarantees of 
the sugar quota during 1960, Castro announced his Agrarian Reform 
Law. Agrarian reform had been an objective of the Castro revolution 
and changes in the Cuban landholding system were clearly needed. 
This law, however, was aimed principally at the holdings of Amer- 
ican sugar companies. 

Its terms and timing, by suspending a Sword of Damocles over 
the ownership of American properties in Cuba, were designed to 
force a continuation of the sugar preferences at least through the 
marketing season of 1960. The administrative discretion and flexi- 
bility derived from the vague provisions of the law permitted in- 
definite postponement of action to expropriate the American prop- 
erties. 



Ill 

The Castro regime could thus publish the law but announce that 
no action would be taken under it until the close of the 1960 market- 
ing season. The Sugar Act of 1948 was required by its terms to be 
reviewed in 1960. The threat of expropriation, coupled with the hope 
instilled in the corporate stockholders that Castro might be made to 
"see the light," might make Congress reluctant to cut or eliminate 
the Cuban quota despite the development of closer ties between 
Cuba and the Soviet Bloc. 

The essential elements of the Reform Law were severance of cane 
grinding from cane production and restriction of ownership of 
grinding mills either to Cuban nationals or to corporations totally 
owned by Cuban nationals. Land ownership was limited to 1,000 
acres per person or corporation. No cane land could be sold to a 
foreign national. Ninety days were allowed to convert the stock in 
mill corporations to Cuban ownership. 

Compensation for the expropriated property was to be in 4% 
Cuban bonds payable in 30 years. The basis of compensation was to 
be the tax value of the land prior to 10 October 1958. In 1958 the 
assessed tax value had been a small fraction of the market value. 
After the Reform Law was published, the market value of cane 
land promptly dropped from $16,800 per hundred acres to $7,800 
per hundred acres. 

Coupled with the threat by the Castro regime, intended to in- 
fluence United States domestic commercial interests, 140,000 United 
States stockholders being affected by seizure of the sugar properties, 
were restrictions placed upon imports from the United States into 
Cuba. These restrictions had the dual object of lessening the outflow 
of foreign exchange from Cuba and bringing home to American 
exporters the importance of the Cuban market. 

These efforts by the Castro regime to influence domestic com- 
mercial interests and opinion generally in the United States raised 
questions concerning Cuba's obligations pursuant to Articles 15 
and 16 of the Charter of the Organization of American States. These 
Articles state: 

Article 15 : No state, or group of states, has the right to 
intervene directly or indirectly, for any reason whatever in 
the internal or external affairs of any other state. The foregoing 
principle prohibits not only armed force, but also any other 
form of interference or attempted threat against the personality 
of the state or against its political, economical and cultural ele- 
ments. 

Article 16 : No state may use or encourage the use of coercive 
measures of an economic or political character in order to 



112 

force the will of another state and obtain from it advantages 

of any kind. 

While it is doubtful this action by the Castro regime was of an 
intensity constituting a violation of Article 16 of the Charter, the 
various measures in their timing and administration seemed de- 
signed to force the wills of members of the Executive Branch and 
Congress. The measures were only partly bona fide agricultural 
reforms and limitations upon the outflow of foreign exchange. 

Cuban Sugar Situation in 1959 and 1960 

During 1959, despite a 20% cut in the free-market quota by the 
Sugar Council, the price dropped to 2.55 cents per pound. The 
Soviet Union purchased 500,000 tons of Cuban sugar in 1959. How- 
ever, this purchase was at the free-market price and substantially 
below the cost of production. 

Although a backlog of 1,000,000 tons would probably be carried 
over by Cuba from 1959 into 1960, the prospect for production 
during 1960 was poor. Faced with possible expropriation of their 
mills and land, the sugar operators were reluctant to make the major 
repairs necessary for the 1960 grinding season. Banks were unwilling 
to lend to the smaller producers. The wages for many laborers in 

1959 were unpaid. Labor unions, which had accepted a moratorium 
on wage increases during 1959, were preparing to make new claims 
during 1960. Counterrevolutionary activity, including sabotage of 
sugar mills and burning of cane fields, was commencing in Las 
Villas and Oriente Provinces. Refugees from the Castro tyranny 
were organizing throughout the Caribbean. 

These domestic problems with which Castro grappled increased 
slightly the free-market price of sugar. But the tables could be 
quickly turned. The sugar which Cuba probably could produce in 

1960 plus the carry-over from 1959 would be channelled into the 
United States quota for 1960. This was estimated tentatively by 
the Secretary of Agriculture at 3,119,655 tons. 

If this quota was quickly reduced in 1959 or early 1960, the 
rejected tonnage Avould be thrown into the free market. This would 
force down the free-market price and the price would quite probably 
remain low with the prospect of the entire Cuban supply being 
marketed in a competitive pricing system. 

Cuba might or might not go" to the International Sugar Council 
to seek an increase in her free-market quota. If sufficient sugar was 
produced in 1960 to require this increase and the consent of the 
Sugar Council could not be obtained, the unsold surplus would have 
to be carried over into 1961 ; sold in a new market, such as Red 
China, from which little foreign exchange could be obtained; sold 



113 

in the free market in violation of the Sugar Agreement; or sold in 
the British or French markets. Neither England nor France might 
agree to these imports. Sugar sales would not be profitable in any 
event unless the sugar entered a closed market providing a price 
premium. 

A Possible Defensive Scheme for the United States 
Employing Economic Sortie Techniques 

The mast effective economic defense which the United States 
could have mounted against the Castro regime in 1959 or early 
1960 would have been aimed to disturb the psychical equilibria of 
key members of the regime elite. 

First, the plan to curtail or eliminate the sugar quota should be 
promptly disclosed. Castro should be notified explicitly what was 
desired in return for continuation of the quota. Second, if Castro 
did not respond promptly to this notification, withdrawal of the 
quota should be executed rapidly. Coupled with this withdrawal 
should be a clear commitment that the quota would be restored if 
Castro met the terms proposed. Third, the quota should be re- 
stored if Castro met the terms. 

To achieve the most intense economic impact upon the Castro 
regime, manipulation of the sugar quota should be supported by 
simultaneous economic action of other types. Thus, an embargo, 
boycott and financial controls should be imposed upon Cuban trans- 
actions under Section 5(b) of the Trading With the Enemy Act of 
19 17. 35 These measures should be hinged upon the same conditions 
prescribed for restoration of the sugar quota. 

A partial embargo, in fact, was imposed in October 1960, under 
the Export Control Act of 1949. This embargo covered all materials 
except nonsubsidized foodstuffs, medicines and medical supplies. 36 
But the embargo came too late for its pressure to be coordinated 
with that of withdrawal of the sugar quota. 

The action suggested would have invited grave risks in 1959 and 
early 1960. Castro might not respond by agreeing to negotiate out- 
standing differences between Cuba and the United States or by 
conceding other points pressed by the Administration. He might, as 
he later did, commence a general confiscation of American assets 
and patently cast his lot with the Soviet Bloc. 

If these further actions were taken by the Castro regime, the 
United States should be prepared to move for joint economic sanc- 



35 See Fn. 8, supra, and discussion of the provisions of Section 5(b) in the 
related text. 

36 25 Federal Register 8638 (1960). 



114 

tions imposed by the Organization of American States. Action should 
be taken to preserve the status quo pending a decision by that 
Organization. This action should probably be, for greatest effective- 
ness, a naval blockade or quarantine of Cuban ports. Justification 
could be offered for such a blockade or quarantine based upon its 
basically defensive nature and upon its international administrative 
function as a status quo maintaining device. Maintaining the status 
quo politically would give the Organization time for mature con- 
sideration of the issues and increase the effectiveness of military 
or economic measures it employed. 

The scheme of action here suggested was not followed by the 
United States in meeting the Castro economic sortie. While percep- 
tive moderate advisers of Castro remained in 1959 and early 1960, 
a defensive economic sortie might have influenced Cuban policy in 
a direction desired by the United States. 

As the United States delayed its responsive action, in part due to 
legal problems in organizing its defense, the structure of the Castro 
power elite began to change. Members of the elite who could make 
the required decisions became difficult to identify. 

An effective defensive economic sortie at this later stage would 
have imposed a heavy intelligence burden and would have required 
a period of intense psychological preparation of the target elite. 
The United States consequently fell into a posture of protracted 
harassment in economic warfare with Cuba; and due in part to 
intervention by the Soviet Union became locked in this position. 

Problems created by protracted harassment have been discussed 
in Chapter I. What were the reasons for this delay of the United 
States in organizing its economic defense? 

D. DIFFICULTIES IN ORGANIZING THE UNITED STATES 
DEFENSIVE POSITION 

Lack of Economic Warfare Professionals 

Apart from the very evident good faith with which the United 
States commenced relations with Castro Cuba, the major reason 
why no prompt response was made to the Castro economic sortie 
lies in the absence of a corps of specialists in economic warfare 
within the Administration to advise the President. 

Had the Castro regime launched a military attack upon the 
United States, this action could have been met promptly and effec- 
tively by professional specialists in military violence. There were 
no specialists in economic violence. This fact invited the Castro 
regime to launch its economic sortie. 



115 

The foreign economic program of the United States was geared 
to developing scientific "lead-time," buttressing military defenses, 
and altering the environments of underdeveloped countries. The 
domestic economic program was geared to evolution of a dynamic 
and growing industrial, investment and employment structure. 
Persons associated with these programs had not developed perspec- 
tives enabling them to advise an economic sortie designed to obtain 
a decision or pattern of decisions from key members of an adversary 
power elite. The roots of the difficulty reached back to the abandon- 
ment of economic violence following World War II and the con- 
cepts of foreign assistance which developed in its aftermath. 

Various persons in the United States during 1959 suggested the 
Cuban sugar quota be cut or eliminated, the Cuban premium of 2 
cents per pound on the United States market be abandoned, or the 
tariff preference for Cuba be jettisoned. The Administration never- 
theless proceeded cautiously. This caution seems to be justified in 
view of the facts and law as members of the Administration per- 
ceived these at the time. 

Intelligence Problem 

Although Soviet Bloc control of the Castro regime now appears 
to have been extensive before and after the Castro success in 1959, 
this was not equally clear in 1959 and early 1960. The actual state 
of United States intelligence upon this point will not be publicized. 
However, it is probably accurate to assume that either little was 
known at the time concerning the extent of Communist control or, 
if there was information upon the point, the facts were in much 
conflict. 

International Legal Considerations 

The Administration was anxious to conform to the requirements 
of international law in its dealings with the Castro regime, had a 
sincere desire to preserve amicable relations between the countries, 
and hoped to avoid needless injury to the Cuban people. 

During the heated debates in Congress in 1960 concerning the 
Cuban sugar quota, Secretary of State Herter carried with him 
constantly Articles 15 and 16 of the Charter of the Organization of 
American States typed on a filing card so he could refer instantly 
to them in his discussions with members of the Congress. 37 Article 
16, mentioned previously, forbade a state to use "coercive measures 
of an economic nature to force the will of another state and obtain 
from it advantages of any kind." 



37 Reston, New York Times, 1 July 1960, p. 24, col. 3. 



116 

The Administration was also concerned that action of the United 
States be consistent with the purposes and principles set forth in 
Articles I and II of the United Nations Charter. Although no 
provisions of the Charter expressly obligated the United States 
to refrain from economic action against a member of the Organiza- 
tion, there was a requirement that members of the Organization 
settle their international disputes by "peaceful means in such a 
manner that international peace and security, and justice, are not 
endangered." This might be used to support an argument that the 
United States "endangered peace or security" or "denied justice" 
by terminating an economic privilege upon which Cuba relied. 

A more direct difficulty was presented by the General Agreement 
on Tariffs and Trade (GATT), a multilateral executive agreement, 
to which the United States and Cuba are parties. 38 As an executive 
agreement on the part of the United States, GATT has the obliga- 
tory effect of a treaty. GATT posed difficulties which might be 
encountered both in reducing the sugar quota and in eliminating 
the Cuban tariff preference on sugar, each being moves urged upon 
the Administration. 

By Article XI of GATT, no prohibition or restriction, other 
than duties, taxes or other charges, whether made effective through 
quotas, import or export licenses or other measures, shall be placed 
on the imports from or exports to any other contracting party. 
Restrictions upon imports of agricultural products are excepted 
from application of the Article when these restrictions support 
enforcement of domestic restrictions upon like products. Neverthe- 
less, any such restrictions must not reduce the total of imports 
relative to the total domestic production, as compared with the 
proportion which reasonably might be expected to rule between the 
two in the absence of restrictions. 

The Article is intended to accommodate a quota system, such 
as that used by the United States to control imports and production 
of sugar; but the Article is intended also to preserve the normal 
pattern of all imports of sugar as against all domestic production 
of sugar. If the United States eliminated the Cuban sugar quota 



38 61 Stat. A5 (1947). GATT originated from tariff negotiations at the Geneva 
Conference of 1947 while the Havana Charter was in process of drafting. The 
Havana Charter and the International Trade Organization to be established 
under it failed because of the decision of the President not to submit the Char- 
ter to the Senate. Other states were unwilling to participate without the United 
States. GATT, however, has served as a point for institutional growth of the 
demands expressed in part in the Havana Charter, although the scope of GATT 
is much narrower. The most comprehensive text concerning GATT is V. A. 
Seyid Muhammad, The Legal Framework of World Trade (1958). 



117 

and, in its distribution of the deficit, showed preference to domestic 
producers, thereby altering the pattern of domestic production 
vis-a-vis imports, the United States might violate the Agreement. 

By Article XIII of GATT, no prohibition or restriction shall be 
placed by any contracting party upon imports or exports of any 
other contracting party unless the prohibitions and restrictions are 
likewise applied to all third countries importing or exporting like 
products. Paragraph 2 of this Article states in part: 

In applying import restrictions to any product, contracting 
parties shall aim at a distribution of trade in such produce 
approaching as closely as possible to the shares which the 
various contracting parties might be expected to obtain in the 
absence of such restrictions, and to this end shall observe the 
following provisions: * * * 

(d) In cases in which a quota is allocated among supplying 
countries, the contracting party applying the restrictions may 
seek agreement with respect to the allocation of shares in the 
quota with all other contracting parties having a substantial 
interest in supplying the produce concerned. In cases in which 
this method is not reasonably practicable, the contracting 
party concerned shall allot to contracting parties having a 
substantial interest in supplying the product shares based upon 
the proportions, supplied by such contracting parties during 
a previous representative period, of the total quantity or value 
of imports of the product, due account being taken of any 
special factors which may have affected or may be affecting the 
trade in the product. No conditions or formalities shall be im- 
posed which would prevent any contracting party from utilizing 
fully the share of any such total quantity or value which has 
been allotted to it, subject to importation being made within 
any prescribed period to which the quota may relate. * * * 
An argument may be made under Article XIII that the Cuban 
quota could not be eliminated by the United States unless the 
quotas of other foreign suppliers who were parties to the Agree- 
ment were eliminated; that Cuba was entitled to a quota based 
upon historic trade patterns; and that entry duties to compensate 
for the American market premium should not be imposed to reduce 
the value of the quota to Cuba. 

By Article XXI of GATT, a contracting party may take any 
action which it considers necessary for the protection of its essential 
security interests if, among other circumstances, "taken in time of 
war or other emergency of international relations." Escape from the 
restrictions of GATT would thus require ability to argue either 
that a "war'" or "an emergency of international relations" existed. 



118 

An emergency of the type contemplated by the Agreement possibly 
could not have been urged convincingly in 1959 or early 1960. 

The Cuban-American tariff preferences are expressly excluded 
from the general "most favored nation" treatment of customs duties 
and charges set forth in Article I of GATT. These preferences were 
continued in a separate "Exclusive Agreement" between the United 
States and Cuba. 39 Although supplementary to GATT, the Exclusive 
Agreement is not a part of it. 

The Exclusive Agreement was a potential impediment to man- 
ipulating the Cuban tariff preference. This was one of the measures 
proposed to the Administration. The Agreement contained no 
provision for termination other than withdrawal of either Cuba 
or the United States from GATT. Under the Protocol of Provisional 
Application of GATT, which remains operative, any party to the 
Agreement can withdraw by giving 60 days' notice. This satisfies 
the requirement of a termination provision in trade agreements made 
in the Reciprocal Trade Agreements Act. 40 

But unless either Cuba or the United States was prepared to 
withdraw from GATT, the only other mode of termination would 
be by mutual agreement. A United States withdrawal from GATT 
would forfeit the tariff and trade privileges which this Agree- 
ment confers. This would be a heavy price to pay in order to man- 
ipulate the Cuban tariff. 

The Exclusive Agreement was not subject to the important 
security exception set forth in Article XXI of GATT. Furthermore, 
even if the Exclusive Agreement was terminated, other agreements 
came into operation which contained statements of termination 
time and would delay the tariff manipulation. 

The Exclusive Agreement suspends operation of the Reciprocity 
Convention between the United States and Cuba of 1902 41 and the 
Reciprocal Trade Agreement between the United States and Cuba 
of 1934. 42 

The Reciprocity Convention conferred the 20% tariff preference 
upon Cuban products. Article XI of this Convention contains a 
termination provision one year after notice by either party. 

The Reciprocal Trade Agreement of 1934 suspends the Reciprocity 
Convention, continues the 20% preference, and provides for termina- 



ls 61 Stat. 3700 (1947). 

40 48 Stat. 943 (1934), Section 2(b). The trade agreements must be subject to 
termination not more than three years after the time the trade agreement comes 
into force; and if not then terminated, shall be terminable on not more than 
six months' notice. 

41 33 Stat. 2163 (1903-5). 

42 49 Stat. 3559 (1935-6). 



119 

tion upon six months' notice. An exchange of letters between the 
heads of the United States and Cuban delegations after the Exclusive 
Agreement was made clarifies the point that the United States can 
terminate either the Reciprocal Trade Agreement or the Reciprocity 
Convention while the Exclusive Agreement is in force. 43 But the 
time limitations in the earlier agreements still apply. 

Thus, pursuant to the exchange of letters, the United States can 
give notice of its intention to withdraw from GATT (60 days), 
thereby negating the Exclusive Agreement, and notice of its inten- 
tion to terminate the Reciprocal Agreement and Reciprocity Con- 
vention. The time limit of the Reciprocity Convention (1 year) 
would be the time which must expire before the tariff could be 
manipulated. 

Threat to American Assets 

In addition to the international legal complications which action 
pertaining to Cuba potentially invited, approximately a billion 
dollars in American assets were at stake. It was amply clear from 
enactment of the Agrarian Reform Law and from the preparedness 
of the Castro regime to make ad hoe changes in the Cuban laws, 
that a campaign against American property would commence if 
the Cuban sugar quota was reduced or eliminated. 

Import restrictions applied by Cuba to American products would 
damage exporters of machinery and textiles and producers of 
wheat, rice and lard, all of these items having been in heavy demand 
in the Cuban market. If the Administration proceeded to "wield 
the axe" without the participation of Congress, the reaction from 
the economic losses suffered by voters might be reflected in the 
alignment of votes in the approaching elections. 

Domestic Legal Problems 

While the President probably possessed emergency powers to 
block imports of Cuban sugar and perhaps take other action, such 
powers being implied from his authority as Commander in Chief 
and from his responsibility for the conduct of foreign affairs, the 
scope of these implied powers was not beyond debate. The existing 
statutes under which he might act also required findings of fact 
which would be difficult to make or required action of a more 
precipitate nature than the Administration was prepared to take 
unilaterally in view of the approaching election. The latter was 
probably the reason for the hesitancy of the Administration in 
invoking the Trading With the Enemy Act of 1917, although 



43 61 Stat. 3705 (1947). 



120 

invoking this Act might also lead to action in the Organization 
of American States in which the Administration did not appear 
ready to proceed. 

Pursuant to the Trade Agreements Extension Act of 1951, 44 
the President can terminate a customs preference or end a quota of 
"any nation or area dominated or controlled by the foreign govern- 
ment or foreign organization controlling the world Communist 
movement." In early 1960, action under this statute would require 
a determination by the President that Cuba was Communist con- 
trolled. This determination might be difficult to support in view 
of the intelligence apparently available. 

Under the Tariff Act the President can impose additional duties 
not to exceed 50% ad valorem, of the property concerned or forbid 
the importation of property when a foreign country discriminates 
in fact by law or administrative regulation against the commerce 
of the United States. The President must find the public interest 
will be served. 45 

Although there had been some discrimination against United 
States commerce at this time, there had not been a great deal. The 
position of the Castro regime concerning United States commerce 
had been limited to extravagant threats of action. 

Action under either the Trade Agreements Extension Act or the 
Tariff Act might support an argument that the United States had 
breached a current executive agreement, such as GATT. Determina- 
tion when the facts were still equivocal of either Communist con- 
trol of Cuba or discriminations against United States commerce 
might damage the moral position of the United States, especially 
in the Organization of American States. 

Unilateral action by the United States against Cuba might 
solidify the impression in Latin America, assiduously cultivated by 
Castro, that Cuban-American difficulties were derived from an 
effort by the United States to "retain" Cuba in "economic bondage." 
Castro could portray his regime as engaged in an heroic struggle 
against greater power and odds; mobilize the support of anti- 
United States elements throughout Latin America; engage the 
sympathy of Latin American governments, which in earlier years 
had struggled with the problem of land reform; and palm off his 
difficulties with the United States as an affair in which he was 
entitled either to Latin American support or to Latin American 
neutrality. 



** 65 Stat. 72 (1951), Section 5; 19 U.S. Code 1362. 
«46 Stat. 704 (1930) ; 19 U.S. Code 1338. 



121 

The United States was committed to joint action in Latin America 
in economic and security matters, and the Administration under- 
standably took the view that the problems created by Castro were 
of such a nature that all American states should assist in solving 
them. It was important that a purely bilateral dispute between the 
United States and Cuba not be allowed to develop. 

Sequence of Events in 1959 and Early 1960 

Throughout the first half of 1959 there was justification for the 
belief that differences between the United States and Cuba were 
amenable to settlement by negotiation. An Agrarian Reform Pro- 
gram was clearly within the general authority of the Cuban govern- 
ment. It seemed equally clear under international law that the 
method, time and amount of compensation were inadequate. 

The seizure of several American owned mills in the latter part 
of 1959 for sabotage of the 1960 sugar crop (failure to plant or 
maintain machinery) was arbitrary and without warrant under 
Cuban law, no hearings being given to the owners or receipts being 
tendered. These issues were fairly clear-cut, and there was no reason 
to suppose that a settlement could not be reached when the emotion 
of the revolution had subsided. 

During the latter half of 1959, however, the economic and political 
ties of Cuba with the Soviet Bloc became increasingly apparent and 
the hope of a settlement of claims by negotiation more remote. 
Moderate, or potentially anti-Communist, members of the Castro 
regime were purged and replaced by officials with a Communist 
record or Communist bias. Judges and lawyers fled the country in 
large numbers. No move was made by the Castro regime to secure 
economic aid from the United States, although aid would have been 
forthcoming if requested. 

When the Congress met in 1960, the Administration was prepared 
to seek standby authority in the President to reduce the sugar quota 
of any foreign county except the Philippines when he found and 
proclaimed that a reduction was necessary to protect the national 
interest. No cut in the quota by the Congress was sought. 

The request was limited instead to a grant of flexible executive 
power so the quotas could be manipulated if the need arose. This 
would avoid action under the Tariff law and the legal complications 
that might arise under GATT and the separate Cuban agreements. 

The President or Secretary of Agriculture could not vary the 
minimum quota as the Sugar Act then stood. Variations in the 
quota above this minimum would require changes in the Secretary's 
estimates of probable annual consumption. These changes would 



122 

certainly disturb radically the price structure and producer and 
consumer interests within the United States. 

The request for authority by the Administration, unfortunately, 
came too late. Much time was to elapse before Congress could 
change the law. Although the President then took action promptly, 
the Soviet Union had, in the meantime, launched its economic 
sortie, cut away the remaining ground supporting the moderate 
opposition to Castro in Cuba, and lashed Cuba securely to the 
Bloc economy and political structure. 

No amendment to the Sugar Act of 1948 was passed by Congress 
until 3 July 1960. Then shortly before the recess of both Houses 
for the National Conventions, and after bitter debate, a standby 
power different from that requested by the President was granted. 
In the interim, tension between Cuba and the United States in- 
creased and Cuba succeeded in harvesting and shipping most of its 
1960 sugar crop. 

Initial caution by Congress seems to have stemmed from the 
surge of threats from the Castro regime that the property of 
American nationals would be confiscated if the sugar quota was 
reduced. The effect of these threats apparently became less as the 
policy of the Castro regime became clearer eventually to con- 
fiscate this property no matter what was done with the sugar quota. 
In the late spring of 1960 the Castro threats appeared to induce 
action by Congress rather than instill caution. 

Problem of Allocation of the Sugar Deficit 

A perplexing problem woven in and out of the debates was the 
mode of disposition of the sugar deficit if the Cuban quota was 
vacated. Just as the Administration proceeded gingerly in its 
action against Castro through apprehension of the effect of con- 
fiscations of American property upon the forthcoming elections, so 
Democratic members of Congress feared the President might re- 
allocate the Cuban sugar quota to influence domestic sugar beet and 
cane growers to vote in favor of his party during an election year. 
Lobbying was intense by both domestic and foreign producers who 
desired a slice of the Cuban share. 46 

A long-term problem concerned the possible effect of vacation of 
the Cuban quota upon the regulatory system of the Sugar Act of 
1948. Administrative practice had been developed to support the 
quota system. Prices were controlled indirectly in a manner which 



46 An interesting account of the tribulations of both Houses shortly before 
the amendment was passed, including a description of the lobbying activities, 
appears in New York Times, 4 July 1960, p. 2, col. 1. 



123 

seemed generally satisfactory. The quota system meshed nicely with 
acreage controls upon domestic producers imposed under other 
statutes. 

If Cuba no longer furnished a large part of the United States 
requirements, then the quota system, for foreign suppliers at least, 
made little sense. A major reduction in the Cuban sugar quota 
would quite probably require reconsideration of the policy underly- 
ing the 1948 Act. 

The Amendment, as finally passed, extended the Sugar Act until 
31 March 1961 and empowered the President to set a new Cuban 
sugar quota for 1960 and for the first quarter of 1961. 47 The 
President was authorized to reallocate to domestic producers 160,000 
tons which Cuba in turn had been reallocated from a deficit by 
Hawaii and Puerto Rico. Portions of the regular Cuban quota, if 
the quota was reduced, were to be reallocated in stipulated pro- 
portions among foreign suppliers. 

The Amendment was viewed as a temporary expedient until the 
Sugar Act of 1948 could be considered by Congress in greater 
detail either after the recess for the National Convention or in the 
new session of Congress following the Presidential elections. 

When it became evident that an amendment would pass before 
Congress recessed, passage of the amendment having been for some 
time in doubt, Cuban suppliers hastened to load ships under the 
existing quota. By the time the Secretary of Agriculture suspended 
Cuban sugar imports, pending action by the President pursuant to 
the Amendment, and despite a prompt increase in ocean shipping 
costs, only 740,000 tons of the 1960 Cuban quota remained unfilled. 
This balance was reduced by the President by 95% on 6 July I960. 4 " 8 

While the Fabian strategy of the Castro-Communist regime, with 
the other factors hitherto noted, had contributed to a delay in 
Amendment of the Sugar Act until the Cuban quota for 1960 had 
been substantially filled, it was virtually certain that the Cuban 
quota for the first quarter of 1961 would be eliminated. It was also 
generally considered that Congress would extend the power of the 
President to set the Cuban sugar quota through 1961. Since the 
Castro regime could not survive indefinitely on the dollars acquired 
during 1960 and upon confiscated American assets, its survival 
depended upon the speed and freedom with which Soviet Bloc 
assistance could be provided. 



«74 Stat 330 (1960). 

^25 Federal Register 6414 (Proc. 3355, 1960). Reduced to 39,752 short tons 
raw value plus sugar certified prior to 3 July 1960 but not yet entered or with- 
drawn from warehouse for consumption. 



124 

E. THE SOVIET BLOC "ECONOMIC SORTIE" AND 
TERMINATION OF UNILATERAL POLICY BY THE 
UNITED STATES 

The gap widening between the United States and Cuba in late 
1959 and early 1960 provided a convenient entrance for a practiced 
and adroitly directed Soviet economic wedge. The groundwork had 
been laid during the Batista regime. The major Soviet problem was 
one of timing in order to complete the breach and smash Cuban 
internal opposition to Castro. 

Soviet sugar purchases from Cuba — made for political reasons 
since the Soviet Union was then a major sugar producer — commenced 
with an order for 500,000 tons in 1954. These orders were reduced 
gradually during the Batista regime to a low of 182,148 tons in 1958. 

These transactions enabled the Soviets to make contact with the 
Cuban sugar industry and officials in the Cuban government with 
economic functions even though diplomatic relations between the 
Soviet Union and Cuba were not maintained. By 1958, however, 
Cuban trade had not been reoriented towards the Soviet Bloc. 

After the Castro revolution in 1959, a Soviet order for Cuban 
sugar was announced. This was of 170,000 tons at 2.58 cents per 
pound. The sale was from holdover sugar owned by the Cuban 
Sugar Stabilization Institute. Payment was in dollars and furnished 
badly needed foreign exchange to the Castro government. An addi- 
tional purchase of 330,000 tons was made in October at 2.905 cents 
per pound. A total of 500,000 tons was thus purchased during 1959. 

The visit of Mikoyan and a Soviet Trade Delegation to Cuba 
coincided with the beginning of consideration of the Sugar Act of 
1948 in the United States Congress. During Mikoyan's visit a cabled 
order for 345,000 tons at 2.78 cents per pound was received from 
the Soviet Union; and on 13 February 1960, a trade agreement 
between Cuba and the Soviet Union was announced. The Soviets 
agreed to purchase 5,000,000 tons of Cuban sugar over a period of 
five years and to extend Cuba credit to $100,000,000 repayable in 
goods or dollars in twelve equal installments at 2y 2 % interest. 

Of the 5,000,000 tons which the Soviets agreed to purchase, 
1,375,000 tons were to be paid for in dollars at the free-market 
price prevailing at the time of purchase. The remaining tonnage 
was to be paid for in Soviet goods. 

The Agreement listed crude and refined petroleum, wheat, metals 
and newsprint, caustic soda and unspecified types of machinery as 
the articles of Soviet barter. Dollar values of the goods and the 
quantities of each to be delivered were not specified, these matters 
being left to supplementary bilateral agreements. In addition to her 



125 

sugar, Cuba was to export fruits and juices, vegetables, fibers and 
hides to the Soviet Union. 

Cuban spokesmen stated the agreement prohibited resale in Cuban 
markets of the sugar sold to the Soviet Union. This prohibition 
would not prevent the Soviets from selling their domestic pro- 
duction in Cuban markets and replacing this deficit with Cuban 
sugar, nor would it prevent sale of sugar by the Soviet Union to 
the satellites and resale by the satellites in Cuban markets. 

If the Soviets followed either of these courses, they might be able, 
despite the efforts of the International Sugar Council, to disturb 
the world market, force down its price and destroy the traditional 
Cuban markets. This would increase the dependence of Cuba upon 
markets behind the Iron Curtain. 

When the Mikoyan Agreement was announced, Cuban representa- 
tives stated they were assured of markets for 700,000 tons in Japan, 
200,000 tons in Morocco and 500,000 tons in Red China. The Japanese 
and Moroccan markets would be within the free-market quota held 
by Cuba. The Red Chinese market was a "new" market and not 
subject to the restrictions which the International Sugar Council 
might impose. 

The publicity received by these manifestations of accord between 
Cuba and the Soviet Bloc gave new hope to those in the United 
States and abroad who desired shares in a reallocated Cuban sugar 
quota. Pressure for a quota cut was increased upon both Congress 
and the Administration. 

Considering himself adequately supported in view of the public 
announcements by his Soviet allies, Castro was emboldened to in- 
crease his attacks upon the United States and elaborate his threats 
to United States property in Cuba. He reinforced his threats by 
seizure of the Santiago de Cuba Oil Refinery of Texaco, Inc., on 
29 June 1960 after refusal by its management to refine Soviet 
crude oil imported under the Mikoyan Agreement. On 2 July 1960, 
he seized for the same reason the remaining two refineries in Cuba, 
Esso (Cuba) Inc., a subsidiary of Standard Oil Company (New 
Jersey) and Shell Petroleum Corporation of Cuba, owned by 
Canadian Shell Ltd., a subsidiary of the Royal Dutch Shell Group. 

After Congress passed its amendment to the Sugar Act of 1948 on 
3 July 1960, and about fourteen hours before the President an- 
nounced his reduction of the Cuban sugar quota, the Cuban Council 
of Ministers amended the Cuban Constitution to permit national- 
ization of property of United States citizens, confiscation of property 
of persons found guilty by special courts of antirevolutionary 
activities, and confiscation of property of those who fled the 



126 

country to escape trial and "who are conspiring abroad" against 
the regime. 

Having anticipated Castro would probably carry his threats 
against American property into execution when his Soviet allies 
were publicly committed to his support, the United States, as its 
first step in multilateral action, submitted on 20 June 1960, a detailed 
memorandum to the Inter- American Peace Committee on the Orga- 
nization of American States. This memorandum, entitled "Provoca- 
tive Acts of the Government of Cuba Against the United States 
Which Have Served to Increase Tension in the Caribbean Area," set 
forth in detail the facts of Cuban-American relations since the 
Castro revolution. The Committee was informed that the United 
States would continue to provide other information relevant to 
the Committee's studies. 49 Submission of the Memorandum was a 
prelude to presentation of the case of the United States to a meeting 
of the Council of Foreign Ministers of the Organization of American 
States. 

In the interim, Minister for External Affairs Roa of Cuba, on 
11 July, charged before the Security Council of the United Nations 
that the United States had intervened in Cuban internal affairs 
and had committed acts of economic aggression. 50 The acts of 
economic aggression cited were "continued threats of economic 
strangulation," influencing Cuban oil refineries to refuse to process 
crude oil owned by the Cuban government (the oil in question 
being that imported under the Mikoyan Agreement) and the extra- 
ordinary power granted the President by Congress which he had 
exercised to reduce the sugar quota. 

By a formula devised by the two Latin American members of 
the Security Council, Ecuador and Argentina, the Cuban com- 
plaint was inscribed in the Agenda of the Security Council without 
objection by the United States. It was understood by Cuba, the 
United States and the remaining members of the Security Council 
that when Cuba had its hearing, the Council would adjourn con- 
sideration of the dispute pending a report by the Organization of 
American States. Such a resolution was adopted by the Council 
on 18 July 1960. Other countries were urged by the Resolution to 
refrain from action which might increase tension between Cuba and 
the United States. 51 

Tension was stimulated rather than reduced. During July 1960, 
Castro frantically tightened his economic and political ties with 



4» U.N. Doc, S/4388, 20 June 1960. 
&° U.N. Doc, S/4378, 11 July 1960. 
«• U.N. Doc, S/4395, 19 July 1960. 



127 

the Soviet Bloc. Chairman Khrushchev had been quick to condemn 
the cut in the Cuban sugar quota as "aggression"; and the Soviets 
agreed to purchase from Cuba the unfilled part of the United States 
quota for 1960 for dollars. The price was below the cost of pro- 
duction but furnished Cuba with needed foreign exchange. 

On 14 July 1960 a Red Chinese trade delegation arrived in Cuba 
and contracted for sugar purchases of 500,000 tons per year for 
five years. Twenty percent of the deliveries in the first year were 
to be purchased in pounds sterling. Payments for the remainder of 
deliveries during the first year and all payments in subsequent years 
were to be in goods. 

The Red Chinese sale was in a new market, and consent of the 
International Sugar Council to an increase in Cuba's free-market 
quota was not required. The consent of the Council was required 
for that part of the United States quota for 1960 sold to the Soviet 
Union which exceeded the free-market quota of Cuba. The United 
States was not active in opposing the Cuban request for an in- 
crease. 52 This inaction probably marks an abandonment of hope 
by the Administration that purely unilateral measures by the United 
States in reducing or eliminating the sugar quota would affect 
significantly either the policies or the stability of the Castro regime. 

Not only were Cuban requests for quota increases usually treated 
with deference by the Sugar Council because of Cuba's importance 
as a party to the International Sugar Agreement, but any action 
by the United States to oppose the quota increase would have been 
substantially without support. Only those Latin American states 
which had begun to appreciate the danger of Communist direction 
of the Castro regime and which had no significant economic stakes 
in Cuba would wholeheartedly support the United States position. 
Most of these were not parties to the Agreement or had few votes 
in the weighted voting system. 

Canada, Japan, the United Kingdom and the allies of the United 
States in Western Europe viewed the contest with detached interest 
and could appreciate the potential market which Cuba might offer 
as its imports from the United States declined. None of these 
countries had reduced their purchases of Cuban sugar and it is 
most unlikely that any would have been prepared to alienate 
Castro by supporting a United States effort to block a sale of 
several hundred thousand tons. 

From the point of view of the United States, the possible effect 
to be obtained upon the Castro regime by frustrating the sale of 
the remainder of its 1960 U.S. quota probably was not worth the 

52 See New York Times, 20 July 1960, page 7, col. 3. 



128 

diplomatic effort which would have been required to secure the 
necessary backing in the Council. 

The Council also considered the Cuban request after the United 
States had submitted its memorandum of 20 June 1960 to the Inter- 
American Peace Committee and the Security Council had made its 
Kesolution of 18 July. With the United States policy reoriented to 
multilateral action in the Organization of American States, uni- 
lateral pursuit of Cuba into the Sugar Council would lend credence 
to a Cuban argument that the United States rather than Cuba was 
the aggressor in the conflict. 

Unilateral action was taken by the United States after the Security 
Council Resolution of 18 July. But these measures can be considered 
little more than an effort to minimize the disruptive influence of 
the Castro regime in other Latin American countries by denying 
to it a supply of dollars and to preserve the status quo to the extent 
possible until the Organization of American States could consider 
the dispute. 

In a strategic sense, these additional economic measures were 
delaying actions in a retreat from an unsuccessful economic defense. 
The United States, for example, prohibited the use of International 
Cooperation Administration funds to purchase Cuban sugar. 53 
Morocco, Iran and South Vietnam had been substantial Cuban 
customers. This move tended to shift the trade from dollars to 
barter. Morocco, for example, agreed to ship phosphate, sardines, 
trucks and other items to Cuba in return for sugar. In October 1960, 
the President placed an embargo upon export from the United 
States to Cuba pursuant to powers granted by the Export Control 
Act of 1949. 54 Excepted from the embargo were unsubsidized food- 
stuffs, medicines and medical supplies. 

The embargo was supported by uncoordinated private action by 
creditors of Cuban importers or of the Cuban government. There 
being many unpaid Cuban accounts in the United States, sales of 
unembargoed items were for cash in advance. Creditors levied upon 
a number of items earmarked for export to Cuba, such as lard 
and diesel engines. They also blocked export of these items. 55 

As the United States took its action supplemental to reduction 
of the sugar quota, Castro commenced his expropriation of American 
property in Cuba. The Delicias and Chaparra Mills of American 



53 See New York Times, 20 August 1960, page 1, col. 2. 

54 25 Federal Register 8638 (October 1960). 

55 See, Trade with Cuba (Hearings Before the Committee on Interstate and 
Foreign Commerce, U.S. Congress, House of Representatives, 87th Cong., 1st 
Sess. Doc. 75553, 1961) 25. 



129 

Sugar Company were seized on July 20th and the Mercidita Mill 
on July 22nd. On August 9th the general confiscation began. By the 
summer of 1961, approximately a year later, an estimated ten to 
fifteen million dollars out of an original billion dollars in American 
assets in Cuba remained in American hands. The reimbursement 
promised by the Castro regime was to be in fifty year Cuban bonds, 
payable from 25% of the receipts from all Cuban sugar sold in the 
United States in excess of 3,000,000 tons per year at a price of not 
less than 5.4 cents per pound. The expropriations were accompanied 
by the imposition of discriminatory licensing requirements upon 
United States goods, discriminatory duties, and reallocation of the 
United States rice quota to the Soviet Bloc. 

While this action by the Castro regime provided a legal basis for 
the abrogation of trade treaties with Cuba and an additional basis 
for complaint concerning Cuban actions before the Organization 
of American States, it also increased the dependence of the Castro 
regime upon the Soviet Bloc for markets and for technical assis- 
tance in operating expropriated American businesses and industries. 

By 1961, approximately 70% of the trade with Cuba was with 
the Soviet Bloc and the remaining 30% with other European or 
American states. The Soviets agreed in September 1960, to pur- 
chase all of the sugar which Cuba had formerly sold to the United 
States. The International Sugar Council was persuaded to increase 
Cuba's free-market quota by 3,000,000 tons to compensate for loss 
of the United States market. 

By the winter of 1960, the Soviet Union and satellites had com- 
menced their destruction of Cuban markets through dumping. 
Quantities of Soviet sugar were offered on the London market 
below the prevailing market price. 56 Poland and Czechoslovakia 
offered refined sugar on the London market for less than the price 
of raw. Similar sales were made in Iraq, Ceylon and the Sudan. 

By a trilateral form of dumping, Cuban sugar became a species 
of currency for the satellites. A satellite bartered goods for Cuban 
sugar and then either bartered the sugar before shipment or sold 
it to other Bloc or non-Bloc countries. The shipment was then 
directed to the third party. These transactions became institutional- 
ized, so that the satellites have become middlemen, standing between 
Cuba and her old markets, and ready to compete in any new markets 
Cuba might seek to develop. 

Cuba thus was forced into a position in which production costs 
had to be lowered by the use of unskilled volunteer labor in cane 



56 See New York Times, 10 March 1961, page 38, col. 3 ; 10 January 1961, page 
69, col. 1. 



130 

harvesting to continue to obtain foreign exchange in the free market. 
Also, increasingly larger quantities of sugar had to be exported at 
increasingly lower prices to attract new markets and offset the 
"market- destroying" effect of Soviet Bloc state trading practices. 

The Cuban request for an increased free-market quota to permit 
this expansion was opposed by the Soviet Union in the International 
Sugar Council in December 1961. The Council entered 1962 dead- 
locked on the issue of quota increases. 57 

Although Cuba had since announced sugar committed to several 
of the satellites will be withheld and sold to customers who furnish 
dollars or pounds sterling, 58 she has been swept economically within 
the Soviet Bloc. The "free" sugar market and Cuba with it are 
firmly within the Soviet economic grip. 

F. MACROSEISMIC EFFECTS OF THE QUOTA MANIPULATION 

Manipulation of the Cuba sugar quota may or may not have set in 
motion a chain of events which will end an effective International 
Sugar Agreement. Nevertheless, the new sugar boycott of its 
principal foreign supplier clearly confronted the United States 
with political and economic problems which overshadowed the 
evanescent political considerations which appeared significant during 
the 1960 Congressional debates. 

By 23 July 1960, the wholesale sugar price in the United States 
was $9.70 per hundred pounds. This was the highest price since 
1923. The price increase was produced in part by higher shipping 
costs upon sugar obtained from sources more remote than Cuba and 
by the lack of a 20% tariff differential upon sugar obtained from 
these sources. Sugar refineries in the Eastern United States handled 
unrefined cane sugar only and could not refine beet sugar obtained 
within the United States without equipment modifications. 

To reduce the rising sugar price, the Secretary of Agriculture 
increased the estimated need in 1960 from 10,000,000 tons to 
10,400,000 tons. 61,840 tons of this increase were to be allocated to 
quota holders and the remainder was allocated to nonquota holders 
in foreign countries. Unutilized sugar beet acreage was reallocated 



57 See New York Times, 10 January 1962, page 69, col. 1. The proceedings of 
the Council are secret. The Cuban quota for 1961 had been set at 1,992,375 tons. 
The Council was prepared to add to this the 3,000,000 tons taken by the United 
States before 1959, but Cuba demanded that this increase be of the total 
4,860,000 tons committed to the Soviet Bloc, or a total free-market quota of 
7,285,000 tons. This would leave the previous 1,992,375 tons to be used in a 
search for new markets and convertible foreign exchange. 

58 See New York Times, 14 February 1962, page 1, col. 4. 



131 

to states, such as California, in which producers could make late 
beet plantings in 1960. In October 1960, domestic restrictions on 
sugar beet acreage were lifted. Waste everglades land in Florida 
was rapidly developed by Cuban emigres and others for cane 
production. 

The system of sugar production within the United States was 
upset by the emergency. Control of production, importation and 
prices under the Sugar Act of 1948 and related laws had been keyed 
to the participation of Cuba as a principal foreign supplier. A 
reduction or elimination of the Cuban sugar quota thus posed the 
problem of a parallel readjustment in the domestic system for con- 
trolling sugar production and imports. 59 

As the logic of the quota system for sugar supply was brought 
into question, the problem was posed for protection of domestic 
producers. Their production costs would be higher than those pre- 
vailing in the territories of any foreign competitors. Innovations 
to protect these producers might have repercussions in the farm 
price support program generally. 

The Congress could be expected to consider matters such as these 
with care and deliberation. While Congress pondered these sensitive 
issues, the policy of the Administration concerning the Cuban sugar 
deficit and its by-products would have to be developed both in- 
digenously and piecemeal. 

The principal problem in foreign affairs which the President was 
left to solve concerned the sugar quota of the Dominican Republic. 
The Council of Foreign Ministers of the Organization of American 
States voted in August 1960 to condemn Dominican acts of aggres- 
sion against Venezuela, to break diplomatic relations with the 
Dominican Republic, and partially to interrupt economic relations 
with that country. Trade in arms and implements of war was to be 
suspended entirely. Extension of this embargo to other articles was 
to be studied by the Council ; but no action extending the embargo to 
items other than arms and implements of war was undertaken at 
this meeting. 

Pursuant to the formula prescribed by Congress in its Amend- 
ment of July 1960, to the Sugar Act of 1948, the Dominican 
Republic was to participate in any reallocation of the Cuban sugar 
quota. The Secretary of Agriculture estimated that by reduction 
of the Cuban quota, the Dominican Republic would receive a re- 



59 At the time of writing (1962), the Administration has prepared a new law 
for the control of domestic sugar production and sugar imports which, it is 
understood, drops the quota system, although the details of the law have not 
been disclosed. 



132 

allocation of approximately 322,000 tons over the 34,000 tons which 
it would have received prior to July 1960. 

Because of the advantageous price on the American market, the 
reallocation was a windfall to members of the Trujillo family, 
whose members controlled much of the Dominican sugar industry. 
The United States was in the position, as many felt, of rewarding 
one dictator while imposing a sanction against another. The Govern- 
ment of Venezuela considered the windfall, while not in violation 
of the letter of the decision of the Council of Foreign Ministers, not 
in accordance with the spirit of that decision. 

When Congress reconvened in August, following the National 
Conventions, the President, in addition to requesting an extension 
of the Sugar Act beyond the deadline of 31 March 1961 with con- 
tinuing authority to reduce the Cuban quota, also requested authority 
to reallocate to other foreign suppliers the 322,000 ton quota which, 
by the Amendment of 1960, would pass to the Dominican Republic. 

This threat of economic action against the Dominican Republic, 
even though its regular quota was not disturbed, proved an obstacle 
which prevented Congressional action concerning the sugar quota 
during the remainder of the session. The Congress adjourned with- 
out extending the Act beyond the deadline of 31 March 1961 estab- 
lished before its recess. 

While it then became necessary for the Secretary of Agriculture 
to authorize importation of 322,000 tons of Dominican sugar, an 
entry fee of 2 cents per pound was imposed upon sugar imported 
under this reallocated quota, the fee being payable in advance. 
This fee was based upon the provision in the Amendment of 1960, 
subjecting a reallocated quota "to such terms and conditions as 
* * * the President * * * deems appropriate under the prevailing 
circumstances." 

The Secretary determined that Dominican sugar in the national 
interest should be purchased at less than the United States market 
price. 60 The part of the Cuban quota allocated to the Dominican 
Republic consequently brought 3.7 cents per pound as against 5.7 
cents per pound which the sugar would have brought without the 
entry fee. While this price was still .45 cents above the world- 
market price, the entry fee denied approximately $12,900,000 to the 
Dominican Republic. 

A somewhat different problem was presented by reallocation of the 
Cuban quota among other quota and nonquota holders. Quota 
countries were quick to solicit increases and were resentful of ap- 
parent inequities in reallocations by the Administration. Nonquota 



60 25 Federal Register 9197 (1960). 



133 

countries, such as India, seeking substantial allocations, could point 
with justification to the fact that the supported American price was 
a form of aid to the foreign supplier. 

Reallocation of the Cuban sugar quota thus became entangled in 
the delicate nuances of foreign aid. An award of part of the Cuban 
quota created a vested interest in the recipient. If Castro fell, the 
Cuban quota might be restored. The tendency of the recipient thus 
might be to support Castro to insure the breach between the United 
States and Cuba continued. If the reallocation proved temporary, 
the United States would have encouraged the foreign supplier to 
increase acreage to meet the new demand. This would leave it with 
an unmanageable surplus when the quota was restored. The Soviet 
Union, the major sugar producer, could then wreck the internal 
economy of the overexpanded sugar producer by disturbances of 
the free sugar market. 

G. THE DEFENSIVE PHASE OF ECONOMIC ACTION AGAINST 
CUBA: AN INTERIM JUDGMENT AND DEMONSTRATED 
NEED 

Sufficient time has not elapsed to permit an adequate appraisal 
of the economic measures developed by the United States against 
Cuba in the "sugar encounter." During 1961 Congress extended 
the Sugar Act until 30 June 1962 and authorized the President to 
exclude from reallocations any country with which the United 
States did not maintain diplomatic relations. Under this authority 
the Cuban sugar quota was entirely eliminated. 61 

The Punta del Este Conference in 1962 voted to interrupt the 
traffic and trade in arms between Cuba and other countries in the 
Hemisphere. The Council of the Organization of American States 
was directed to consider the extension of this embargo and boycott 
to other items, with special attention to those of a strategic nature, 
although recommendations concerning such matters must now come 
from the Council. 

A boycott upon shipments of goods into the United States of 
Cuban origin and goods imposed from or through Cuba was imposed 
by the President in February 1962. 62 Action may be taken to have 



6175 Stat 40 (1961). 

62 25 Federal Register 1085 (1962). Reliance was placed upon Section 620(a) 
of the Foreign Assistance Act of 1961, 75 Stat. 445, which authorizes the Presi- 
dent to maintain a total embargo on all trade between Cuba and the United 
States. The term "boycott" is used in the text as a more accurate description 
of the effect of the President's proclamation, an embargo already existing on 
the outflow of trade from the United States to Cuba. 



134 

the Coordinating Committee of the Consultative Group apply 
its International List and trade restrictive techniques to Cuba. 63 
The effects of these and other measures which may be adopted must 
be assessed in the future. 

At the present time the most sanguine tentative appraisal of these 
measures suggests only that time was bought within which Latin 
American action might be mobilized to contain the Castro-Com- 
munist revolution by accelerating the drift of Cuba into the 
Soviet grip. Whether this will work ultimately to the political 
advantage or disadvantage of the United States will depend upon 
the effectiveness with which the purchased time is utilized. 

Economic pressure upon Cuba frustrated for the time being an 
extension of the Castro Revolution to other parts of Latin America. 
Loss of dollars derived from premium sales of sugar in the United 
States created unemployment in Cuba. The embargo of 1960 and 
its subsequent extension in 1962 have created serious shortages in 
food and hardware. Although assistance from the Soviet Bloc 
might ultimately compensate for these deprivations, the Castro 
regime was, in the interim, forced to concentrate its attention upon 
internal problems and could devote only a small part of its time 
and even less of its resources to exportation of its political, social 
and economic doctrines. 

Manipulation of the quota created a Cuban emergency. Delay in 
the manipulation, coupled with the excitement and surge of patriot- 
ism which the quota withdrawal created in Cuba, enabled Castro 
to purge his moderate followers without embarrassing explanations 
to the Cuban public of the facts behind the ousters. Redirection of 
Cuban trade was forced at a time when only the Soviet Bloc had 
both the capacity for absorbing it quickly and the political motive 
for soliciting actively Cuban requests for markets and economic 
assistance. 



63 A suggestion of the outline of probable future action may be found in the 
testimony of Secretary of State Rusk appearing in Investigation and Study of 
the Administration, Operation and Enforcement of the Export Control Act of 
1949 and Related Acts, Part II (Hearings Before the Select Committee on Ex- 
port Control, House of Representatives, 87th Cong., 2nd Sess. Doc. 77836, 1962) 
606-610 ; 615-620 ; 625 ; 626. 



PART II 
THE NAVAL PARTICIPANT IN ECONOMIC WARFARE 

CHAPTER III 

ECONOMIC IMPACT OF INTERNAL CONFLICT 

INTRODUCTION 

This Chapter deals with economic warfare in the early phases of 
an insurgency. The function of the United States Navy in this 
context is primarily one of protecting the lives and property of 
United States citizens. Their property may be jeopardized by 
economic warfare practiced either by the insurgents or by the de jure 
government of the state divided by internal conflict. The economic 
warfare posture of the United States is basically that of a third 
party, parrying the economic warfare thrusts of contestants in civil 
strife. Four Situations are presented. 

Situation 1 deals with the critical intelligence problem in eco- 
nomic warfare and the special role in fact gathering to be performed 
by naval surface units. Considered here are alternatives for obtaining 
intelligence, port control by the territorial sovereign and special 
legal problems associated with visits to foreign ports and approaches 
by naval units to foreign coasts and blockading squadrons. A 
description of the Organization of American States, the origins of 
the Organization and its functions, appears in Footnote 25. 

Situation 2 develops distinctions between "closure" of an in- 
surgent port and "blockade." Rights of the de jure government and 
the insurgents to visit, search, and seize vessels of "bystander" 
states in territorial waters of the divided state are considered. 

In Situation 3 legal problems are examined pertinent to armed 
landings to protect lives and property when the local government 
either cannot or will not extend this protection. The diverse defini- 
tions and opinions concerning "intervention" in international law 
are examined principally here, although in Situation 1 the "inter- 
vention" problem is introduced with major emphasis upon the 
views of Western Hemispheric states. 

Because "intervention" claims are frequently advanced in response 

135 



136 

to economic warfare, "intervention" receives distributive treatment 
in this book. The varying perspectives concerning intervention 
are best grasped by relating the sundry definitions to concrete 
cases. However, the discussion in Situation 3 is intended to provide 
a general background for the discussions in situations that follow. 
"Self-Defense'' and "Collective Self-Defense" arguments are dealt 
with in detail in Chapter IV, Situation 6. 

The narrow but complex and important problems of requisitions 
and contributions during insurgency are considered in Situation 4- 
Since few treaties or conventions dealing with requisitions or con- 
tributions apply specifically to these practices during insurgencies 
before recognition of a state of belligerency, naval officers have 
solved these problems for generations by the application of good 
judgment and "common sense" coupled with minor applications of 
force when required. The Discussion suggests legal arguments which 
might be advanced should the occasion demand it. 

A. NAVAL RECONNAISSANCE IN CIVIL DISTURBANCE 
Situation 1 

The Partido Democratico Secreto (PDS) led by Salvaje, is 
declared illegal in Nueva (see map) by the constitutionally elected 
and generally recognized government of President Cortez. Desultory 
fighting has occurred between Cortez and PDS forces in Exaltation. 

Our Charge d'Affaires in Dolores, the Nuevan capital, reports 
our Consul from Exaltation is in Dolores and has not been permitted 
to return by Cortez troops. Wire communications between Dolores 
and Exaltation are broken. There is no radio contact between our 
Ministry and the Consulate. No other diplomatic missions in Dolores 
have contact with their consulates in Exaltation. The Nuevan For- 
eign Office states Cortez has received a message in which Salvaje 
threatens to destroy the lumberyards in Exaltation unless Cortez 
troops are withdrawn, the PDS reinstated, and Salvaje is taken 
into the Cortez government as Premier. Our Charge d'Affaires 
believes Cortez will reject these terms. 

A Buick dealer who drove from Exaltation to Dolores reports 
three Cortez soldiers have been killed and ten United States citizens 
have taken refuge in the Consulate. He also reports rumors in 
Exaltation that officers and crews of Almirante Medina and Almi- 
rante Sidonia, Nuevan destroyers, anchored in Exaltation harbor, 
have defected. These are the major combat units of the Nuevan 
Navy. 

Early this morning, Cortez declared all communications, except 



137 




C 4 RIB BE ^f 




&~9 PATRICIO 



FARRAGO 



100 MILES 



138 

diplomatic dispatches, to and from Nueva, blocked effective im- 
mediately. He also decleared a "blockade" of Exaltacion. 

The lumberyards in Exaltacion are owned by the Virginia Pine 
Products Corporation, a Virginia Corporation, and Union Box and 
Bagging Company, an Illinois Corporation. These are not guar- 
anteed investments under the Act for International Development 
of 1961. 

The lumber presently stored or seasoning in the yards is valued 
at $35,000,000.00. The owners intend to sell this lumber in the 
United States. 

U.S.S. Montgomery (cruiser), U.S.S. Staton (destroyer) and 
U.S.S. Parsons (destroyer) are at sea and can reach Exaltacion 
within three hours. The 5th Battalion, 6th Marine Division, with 
airlift capability, is at Coloso, Antioka, and can reach Exaltacion 
within five hours. 

Nueva and Antioka are members of the United Nations and of 
the Organization of American States. They are parties to the Rio 
Pact. 

Our Secretary of State and our Minister to Nueva (on leave in 
the United States) are in conference. Both are inclined to the view 
that a naval unit should be sent to Exaltacion. This unit will deter- 
mine effectiveness of the "blockade" declared by Cortez, the strength 
of the revolt by the PDS, and Salvaje's willingness and ability to 
protect American citizens and their property in Exaltacion. 

You have been given the situation by telephone and are to be at 
the State Department at 1400 (within approximately one hour) 
to assist the Secretary and Minister in preparing a recommendation 
to the President. What "legal" questions should you raise for con- 
sideration at the conference? 

Discussion: Situation 1 

Tentative Factual Analysis 

The revolt is ill organized and uncoordinated and probably pre- 
maturely induced. Salvaje has turned to economic warfare as a 
primary policy device by threatening to sabotage a major product 
held for export. There is no basis for a judgment concerning his 
immediate or ultimate plans. 

However, plausible assumptions may be made about his threat to 
destroy the property. (1) He probably seeks to gain time to attract 
foreign support and acquire equipment. (2) He wishes to publicize 
repressive action by the Cortez government. To do this he is creating 
a situation which might be presented to an international security 



139 

organization. (3) He may intend to weaken the Cortez government 
by: (a) destroying a product which, if sold, will bring dollars into 
the country; and (b) demonstrating its inability to protect the 
property of foreign nationals. 

The revolt is in a critical stage. It might be quickly crushed or 
spread rapidly depending upon the attitudes of other states. 

Necessity for Information 

The United States needs immediate information concerning the 
strength and intentions of the Cortez and Salvaje factions. Informa- 
tion concerning the Cortez forces can be obtained from our Charge 
d'Affaires in Dolores through the usual diplomatic channels. But 
Exaltation has been cut off by land. Wire and radio communications 
with it have been broken. 

Military action may be necessary to protect the lives and property 
of our citizens in Exaltation. This action should not be taken unless 
a real peril to lives and property of American citizens is discovered. 
Action then should be taken only if the Cortez or Salvaje factions 
are either incapable of discharging or are unwilling to discharge 
the international obligation of Nueva to protect aliens and their 
property. The necessity, timing and scope of possible military action 
necessitates developing a reliable intelligence source in Exaltation. 

Establishing an Intelligence Source 

An intelligence source would be created preferably by persuading 
President Cortez to allow our Consul to return to his post and from 
there communicate with the Ministry in Dolores. An argument for 
free access of the Consul to Exaltation may be based upon a treaty 
of friendship and commerce between Nueva and the United States. 
An argument may also be based upon the customary international 
law of diplomatic immunities. We might rely upon this customary 
law to insist upon free movement of our diplomatic personnel 
between Dolores and Exaltation and communication by wire or 
radio between our Ministry and the Consulate. 

Such arguments are likely to carry little weight while the 
emergency is acute. The Cortez government will attempt to isolate 
the rebels from all external communication and possible assistance. 

Since the insurgents will try to establish outside contacts, it may 
be possible to wait until this happens. In the interim, American 
lives may be lost or property destroyed. These things might be 
prevented by prompt action. 

Clandestine agents may be infiltrated into Exaltation or contact 
may be made with clandestine agents already there. 



140 

A communications team may be airlifted to Exaltacion to establish 
a communications base. But such a team is difficult to protect and 
control. An incident might result precipitating premature United 
States action. 

The most reasonable alternative is to dispatch a United States 
naval unit to Exaltacion. The unit should possess sufficient force for 
its protection. Its presence will provide a bargaining element in 
negotiations with Cortez to permit return of the Consul and re- 
opening communications. It will deter interference by disloyal 
Nuevan naval units in the event airborne landings in Exaltacion are 
necessary and provide the fire support such landings may require. 

Control by a Territorial Sovereign 
Over Entry of Foreign Warships 

The territorial sovereign (in this situation the Cortez govern- 
ment) is entitled to close a port; designate times when entries may 
be made and the time of sojourn; and require the departure on 
short notice of either a merchant or war vessel. There is no right 
of innocent anchorage analogous to the right of innocent passage 
through territorial waters. The United States has taken the posi- 
tion that it may require withdrawal of a foreign vessel of war from 
one of its ports within six hours even before expiration of the 
previously agreed time of sojourn. 1 

There is no minimum time limit for requiring a departure, sub- 
ject to delays necessary to refuel, assemble the crew, and obtain a 
pilot and tug. The time should be determined by the type and 
condition of the vessel, its preparedness to put to sea, and conditions 
in the port. 

A warship, today, poses less of a threat as a base for shore 
bombardment while in port than when at sea. But these vessels, and 
merchant vessels as well, may serve as vehicles for prepositioned 
nuclear explosives, missile guidance devices, radar jamming equip- 
ment and biological warfare munitions. These hazards justify 
summary and decisive action. The port control laws of all major 
states provide administrative machinery for port closures. 2 

This potential control over its ports is nevertheless seldom ex- 
ercised by a littoral state except during warfare or under special 
circumstances such as those prevailing in the Panama Canal Zone 



1 A discussion of the problem appears in U.S. Naval War College, Interna- 
tional Law Topics and Discussions, 1914, 35-67. 

2 The power of the President to control United States ports is set forth in 50 
U.S. Code 191 and the regulations of the Coast Guard pursuant to this authority 
appear in 33 CFR 6.01-1 et seq. 



141 

or in nuclear testing areas. 3 Active patrols at sea are likely to 
detect suspected vessels. These can be prevented from entering a 
port. 

Accordingly, the only situation in which significant conflict de- 
velops concerning the visit of a warship to a foreign port is during 
civil strife, as in Nueva, when the visit is to a port under possible 
rebel control and de facto control of the port by the de Jure govern- 
ment is questionable. This problem is explored in greater detail in 
Situation 2. However, it is in the incipient stages of an insurgency 
that an information "blackout" is likely to occur. If a naval recon- 
naissance is undertaken, adequate attention must be given to avoid- 
ing an issue of authority of the de jure government over the port. 

While it is customary to obtain consent of the territorial sovereign 
prior to a call by a naval unit at a port within its territory, 4 there 
is no international legal requirement that consent be obtained in 
advance of the visit. 

If consent by the Cortez government was sought by the United 
States in advance, the Cortez government might assent to the visit. 
The assent might be granted on the ground the presence of an 
American warship would be viewed as a gesture of moral support 
for the regime. Presence of an American warship might also in- 
fluence the loyalty of the officers and crews of Xuevan vessels at 
Exalt acion in favor of the de jure government. Information of the 
rebel plans might be obtained from the American intelligence efforts. 

On the other hand, Cortez has declared a "blockade" of Ex- 
altaclon. It is well settled that a foreign warship has no right to 
pass an effective blockade. Such a vessel may be allowed ingress 
and egress subject to conditions imposed by the blockade com- 
mander. 5 

While it remains to be determined whether the "blockade" declared 
by Cortez is a blockade and is effective, his declaration may indicate 
his intention to forbid entry to the port. 

It is undesirable to present at this stage of the insurgency the 
issue of control by the Cortez government over Exaltacion.' Cortez 
might be placed in a position in which he would be obligated, for 



3 The regulations for the Canal Zone and the Nuclear testing areas in the 
Pacific are established by the Governor of the Canal Zone and the Department 
of the Navy respectively, pursuant to power delegated by the President under 
50 U.S. Code 191. 

4 I Hyde, International Laiv, 583 (1947) ; II Hackworth, Digest, 408 (1941). 
The procedure is not followed when a warship is driven into port by weather 
or unseaworthiness. Ports open to merchant vessels are open to warships. 

5 These conditions normally will exclude the carriage of passengers, supplies 
and dispatches. See II Moore, Digest, 571 (1906). 



142 

the sake of consistency, to withhold consent. It is desirable to avoid 
also the issue of "intervention" which might be raised if the recon- 
naissance should be made in defiance of the wishes of the Cortez 
regime. 

It is arguable that the purpose of the visit, which extends beyond 
a mere courtesy call, places a special obligation upon the United 
States to secure the permission of a government which may still 
be in effective control of a port. But international custom upon 
which such an argument might be based is slight. 

United States Position Concerning Advance 
Consent to a Naval Reconnaissance 

In 1901, Venezuela protested the entry of U.S.S. Scorpion into the 
"closed" port of Santa Catalina. The Venezuelan note alleged : 6 

An officer in uniform went ashore * * * and returned on board 
accompanied by a gentleman called Boynton, an employee of 
the company which has its agency at said port, and * * * no 
explanation was given for this flagrant violation of the usual 
formalities. 

Santa Catalina is on the Orinoco River. A Venezuelan law re- 
quired governmental consent for a foreign warship to enter closed 
ports on "scientific" missions. 
United States Minister Loomis replied in part : 7 

* * * I was not aware that there was a law in force closing 
the Orinoco River to the public vessels of a friendly nation 
bent on the peaceful and inoffensive mission of seeking informa- 
tion from its nationals engaged in lawful business on the banks 
of that stream. 

It is true that when it was desired to do certain scientific 
work for the benefit of navigation and the shipping of all 
nations at the banks of the Orinoco and San Juan rivers, the 
formal permission of the Venezuelan Government was asked; 
but in these cases it was deemed necessary to keep a war vessel 
in Venezuelan waters for many weeks, and the officers and men 
on these scientific expeditions were at work in small boats 
taking many observations and measurements, so it was only 
natural that their presence for so long a period of time and 
their activity should be explained in the form of asking permis- 
sion for the performance of the task in question. 

The Scorpion, as I understand it, recently made a very quick 
trip to Santa Catalina and immediately returned to the coast. 



6 Ibid., 566. 
* Ibid. 



143 

Her visit was of course wholly inoffensive in character and 
devoid of significance in any other sense than the one I have 
the honor to indicate, and, as your excellency knows, there are 
precedents for the informal visits on the part of war vessels of 
a friendly nation. * * * 

Secretary of the Navy Long's memorandum in relation to the 
visit of Scorpion states : 8 

In the practice of this Department there is a distinct and 
well recognized difference between the visit of a man-of-war 
and a visit for 'scientific purposes,' such scientific purposes being 
usually hydrographic and occasionally topographic examination 
of territorial waters or shores of a foreign country. 

The Department would ordinarily not order one of its vessels 
to any port of any country having a recognized government 
to conduct surveys or examinations, without having first not 
only notified that government of its wish, but having obtained 
explicit permission for conducting the survey upon the occasion 
of the visit. 

On the other hand, it would neither send notice nor request 
permission in case the visit was not undertaken for the purpose 
of conducting such survey or other similar purpose, unless the 
waters proposed to be visited were expressly denied to passage 
of men-of-war by national decree, as in the case of the Amazon. 
In 1895, American missionaries apprehended massacres in Marash, 
Hadjin, Orfa and other cities under Turkish control. U.S.S. Marble- 
head was ordered to the Gulf of Alexandretta to find the facts. 
Secretary of State Olney replied in response to an inquiry by the 
Turkish Minister that the visit was : 9 

* * * in pursuance of a long established usage of the govern- 
ment to send its vessels, in its discretion, to the ports of any 
country which may for the time being suffer perturbation of 
public order and where its countrymen are known to possess 
interests. This course is very general with all other governments, 
and the circumstances that a transient occasion for such visits 
may exist does not detract from their essentially friendly 
character. * * * 

Naval Armed Reconnaissance in 
Civil Disturbance As "Intervention" 

A United States naval vessel in the port of Exaltacion will affect 
the insurgency. Contact of an informal nature with Salvaje may be 



8 lUd., 570. 

9 Ibid., VI 342. 



144 

necessary to obtain information. The visit may be taken by others 
either as an effort to overawe the insurgents or as a gesture in their 
support. 

These effects will be characteristic by-products of a naval recon- 
naisance during civil strife. They may furnish for this reason the 
basis of a charge of "intervention" in the domestic or foreign affairs 
of the state concerned. 

The problem has been discussed as one of "offensive" intelligence 
gathering or "espionage." The unmentioned but effective by-products 
of the visit usually are the injuries provoking the charge of "inter- 
vention." 

In the Corfu Channel Case, 10 for example, two British destroyers 
were damaged by underwater explosions. These explosions were 
believed by the British to have been produced by mines moored in 
Albanian territorial waters in the Corfu Channel. 

The United Kingdom announced its intention to sweep the chan- 
nel. The International Mine Clearance Board decided to order a 
sweep if Albania consented. 

Albania withheld its consent. But the United Kingdom never- 
theless swept the channel, protecting its minesweepers by a large 
covering force. 

Thereafter, before the World Court, the United Kingdom argued 
in part that the sweep was justifiable because it was executed to 
obtain evidence to facilitate the task of the Court. The Court 
rejected this argument, stating: 11 

* * * The Court can only regard the alleged right of inter- 
vention as the manifestation of a policy of force, such as has, 
in the past, given rise to the most serious abuses and such as 
cannot, whatever be the present defects in international organi- 
zation, find a place in international law. Intervention is perhaps 
still less admissible in the particular form it would take here; 
for from the nature of things, it would be reserved for the most 
powerful States, and might easily lead to perverting the ad- 
ministration of international justice itself. * * * 
The evidence obtained in the sweep was a vital part of the British 



10 International Court of Justice, The Corfu Channel Case (Merits) , Judgment 
of April 9th, 1949, I. C. J. Rep. 4 (1949). 
u Ibid., 35. 



145 

case. The Court did not hesitate to consider the evidence in its 
decision in favor of the United Kingdom. 12 

The language of the Court concerning the propriety of an inter- 
vention by a naval force in the territorial waters of another state 
in order to obtain the evidence necessary to support a claim against 
the latter is in response to the case presented by Albania. Yet the 
injuries to Albania were not considered explicitly. Apart from 
injury to Albanian pride and dignity, there were two major injuries. 
First was the adverse effect of the naval demonstrations upon the 
concomitant Albanian boundary dispute with Greece. The second 
was the disturbing effect upon the internal order of Albania where 
the Hoxha government was not then firmly entrenched. 13 

Whatever the intention of the United Kingdom may have been 
concerning the Albanian-Greek dispute or the stability of the 
Hoxha government, it clearly needed a passage through the channel 
and evidence to support its claim for damaged vessels and loss of 
life. Under the circumstances in the Corfu Channel area in 1949 
these by-products probably could not have been avoided. Avoiding 
similar by-products, however, is a major task in a naval recon- 
naissance during civil strife if an intervention argument is to be 
denied an existing or prospective adversary. 

During a naval reconnaissance the factual matrix is amenable to 
management in a marked degree. Reliance may be placed upon past 
acceptance of nonhostile naval visits to avoid intervention argu- 
ments. 

Doctrine of "Intervention" — Preliminary 
Discussion — Background 

But what foundation for an "intervention" argument might be 
provided by a naval reconnaissance assuming the most adverse 
circumstances? Difficulty stems from varied and conflicting defini- 



12 A summary of difficulties of the old "Permanent" Court and the present 
World Court in finding facts in cases before them and suggestions for reform 
appear in Alford, "Fact Finding by the World Court," 4 Villanova Law Review, 
37 (1958). These difficulties have been shared by other international organiza- 
tions. The United Nations Special Committee formed to investigate the alleged 
intervention of the Soviet Union in Hungary was not allowed to enter Hungary 
and based its report on information obtained without direct observation. U.N. 
Doc. GA/3592, 11th Sess., Supp. No. 18. 

13 For opposing views concerning seizure of the evidence, see Nasim Hasan 
Shah, "Discovery by Intervention : The Right of a State to Seize Evidence 
Located Within the Territory of the Respondent State," 55 A.J.I.L., 595 (1959) ; 
Fitzmaurice, "The Law and Procedure of the International Court: General 
Principles and Substantive Law," 27 Brit. Y.B. Int. L., 5 (1950). 



146 

tions of "intervention" by publicists and the unwillingness of some 
to experiment with definitions. 

In the Discussion of Situation 3 in this Chapter, the difficulties 
in a definition of "intervention" and the shortcomings of the pre- 
vailing definition based on "coercive impact" will be explored. A 
test for intervention geared to administrative requirements in regu- 
lating coercion will be suggested. 

It should be observed at this point, however, that by none of the 
usual treatments of "intervention" would a naval reconnaissance be 
impermissible. While all intercourse between states has some impact 
in the territories of the states involved, stretching the concept of 
intervention to cover all impact would stretch the concept to the 
breaking point. Indeed, it has been observed that the rule of law 
in international affairs depends upon "intervention" for its support. 
"Non intervention," like "sovereignty," should not be taken as an 
absolute. 14 

The usual definitions of "intervention" stress "method," "pur- 
pose" and "impact." Oppenheim defines intervention as "* * * 
dictatorial interference of a State in the affairs of another State for 
the purpose of maintaining or altering the condition of things." 15 
Hyde concentrates upon the effects of the action, describing inter- 
vention as "* * * interference of a State in the affairs of another 
State in opposition to its will and serving by design or implication 
to impair its political independence." 16 

Elements of both definitions are combined by Thomas and Thomas. 
These authors describe intervention as occurring "when a state or 
group of states interferes, in order to impose its will in the internal 
or external affairs of another state, sovereign and independent, with 
which peaceful relations exist and without its consent, for the pur- 
pose of maintaining or altering the condition of things." 17 Thomas 
and Thomas emphasize : 18 

* * * A fact of importance which is often forgotten is that 
there must be in the influence a factor to force compliance 
with the will of the interfering state. The interference must 
take place as action or inaction or threats thereof of an adverse 
nature or are thought to be adverse in case the state should 
fail to conform to the will of the intervening state. 



14 Fenwick, "Intervention and the Inter-American Rule of Law," 53 A.J.I.L., 
873 (1959). 

15 I Oppenheim, International Law, 305 (8th Ed., 1955). 

16 I Hyde, International Law, 246 (1947). 

17 Thomas and Thomas, Non-intervention, 71 (1956). 
**lbid., 72. 



147 

By the Oppenheim or Hyde definitions, or the more precise 
definition by Thomas and Thomas, a mere reconnaissance by a naval 
vessel to determine the facts in a civil disturbance is not a delict. 
There is no "dictatorial" interference nor is there an intention to 
alter or maintain local political conditions. 

It is possible that information so acquired may prove the basis 
for a decision to take military action to preserve United States lives 
and property when local authorities are unable or unwilling to 
discharge an international responsibility to do so. But the political 
"independence" of the state concerned cannot be said to be materially 
affected by the action if limited to these ends. There is no "coercive" 
element either in obtaining the information or in using it. 

Publicists have deduced from the doctrine of "independence" of 
a state in international law an implied prohibition upon the pro- 
jection of the power of one state into the territory of another. 
Since states exist in an environment in which their peoples are inter- 
dependent for values, and the decisions of officials in one state for 
this reason normally have some impact in the territory of another, 
these scholars appear to view all interstate impacts as presumptively 
interventions of a "delictual" nature. However, they seek to establish 
permissive areas of intervention — such as "normal commercial dip- 
lomatic intercourse," "self-defense," "reprisal" or "exercise of a 
treaty right." 

This approach tends to accept state protests as an index of the 
offensive nature of a specific action. But these protests have been 
made when there is no offensive impact of a serious nature and 
often recite objections other than the real complaint. 

Within recent years protests made either for "diplomatic spying" 
or for the espionage activities of amateurs, combining gathering of 
political and economic intelligence with study, business or travel, 
have been highly publicized. These protests are intended to plug 
inadvertent leaks in government communications channels, rally 
support to the government by dramatizing a foreign menace, or 
create bargaining advantages. 

Robert A. Vogeler, for example, was convicted of espionage and 
sabotage in Hungary in 1950. He was released in exchange for a 
United States agreement to reopen Hungarian consular offices in 
New York and Cleveland, validate passports of American citizens 
for Hungary and deliver Hungarian goods held in the United States 
Zone of Germany. 19 

Protests concerning espionage should not be taken as expressing 



19 24 Department of State Bulletin, 723 (1951) ; New York Times, 29 April 
1951. 



148 

a consensus that espionage or other covert or overt intelligence 
efforts are "interventions" in violation of international law. While 
espionage is a crime by the laws of all states, it has never been 
considered clearly an immoral act unless involving an element of 
treason. Espionage, of course, may be associated with acts, such as 
sabotage, that are considered interventions. Espionage may be so 
intertwined with the illegal act that it cannot be separated from it. 

A special method of espionage or reconnaissance may be con- 
demned as an "intervention." There is general agreement, for in- 
stance, that invading the territorial airspace of a state, covertly or 
overtly, without its consent is an international delict. 20 Any incursion 
into the territorial airspace is delictual whether the mission of the 
aircraft is carry and drop a bomb, introduce saboteurs, or photo- 
graph the terrain. 

Differences in treatment may be accorded the aircraft, its pilot 
and passengers depending upon its mission and the circumstances 
under which it intrudes. 21 Yet the mere aerial intrusion is regarded 
as a delict irrespective of the mission. 

Espionage by the pilot, such as that by Pilot Powers in his U-2 
mission, may enhance the offense. But the method of espionage is the 
serious feature which is likely to result in its characterization as 
an international legal delict. 

There is a "legal" advantage in reconnaissance by a naval sur- 
face vessel. The method of reconnaissance or espionage, depending 
upon the overt or covert nature of the operation, is one that has 
been accepted for many years and to which the rights and obligations 
of states in an insurgency have been geared. 

Air surveillance may produce information bearing upon the degree 
of military investment of Exaltacion but can contribute little con- 
cerning the intentions of the insurgents or the attitude of the pop- 
ulation. Air surveillance may be interrupted by bad weather. It is 
difficult to maintain for long periods of time, and presents the 
hazard of incidents through failure of the competing factions to 
identify the aircraft. 

Surface vessels are easily identified. Their right of approach to 
determine the effectiveness of a blockade is clearly settled. 

As stated by Secretary of State Van Buren in 1831 : ^ 

It is not inconsistent with the principles of international law 

for a neutral sovereign to send an armed cruiser to watch a 



20 See Wright, "Legal Aspects of the U-2 Incident," 54 A.J.I. L., 836 (1960). 

21 See Lissitzyn, "The Treatment of Aerial Intruders in Recent Practice and 
International Law," 47 A.J.I.L., 559 (1953). 

22 VII Moore, Digest, 790 (1906). 



149 

blockaded coast, so as to see no injustice is done to his own 

merchant vessels, and that they may be prevented from any 

irregular proceedings. 

There may be special circumstances, such as the Albanian-Greek 
dispute or the amount of force employed in the Corfu Channel Case, 
placing the method of naval surface surveillance in an unfavorable 
perspective. The commander must take care that his action is limited 
to reconnaissance and that gestures of support for either side are 
avoided. 

Thus, Captain Voorhees was dispatched in the frigate Congress, 
in 1844, to Montevideo to observe and protect American interests 
during a civil contest in Uruguay. Montevideo was then besieged 
by General Oribe and was blockaded by cooperating vessels of the 
Argentine Confederation. 

Sancala, an armed schooner of the Oribe faction, pursuing a 
fishing boat supplying the besieged forces, accidentally fired upon an 
American merchantman and then took refuge with the Argentine 
fleet. 

When Captain Voorhees learned of this, he captured Sancala 
and followed up this success by capturing the Argentine blockaders. 
His action was disavowed by the United States. Captain Voorhees 
was court-martialed and convicted of disobedience of orders, having 
been enjoined by Commodore Turner to "maintain a strict and 
unqualified neutrality in all things." 

His letter of reprimand by Secretary Bancroft and the findings 
and sentence of the Court were transmitted to the Argentine 
Minister "with an expression of the hope that his Government would 
see in it a satisfactory proof of the disposition of the United States 
'to respect the rights of Buenos Aires'." M 

"Intervention" Defined by International Agreements 

There is nothing in the treaties or conventions to which the United 
States and Nueva are parties prohibiting a naval reconnaissance of 
the type contemplated. This assumes the reconnaissance will be 
conducted with adequate care to avoid foundation for a charge of 
"intervention" based upon customary international law. 

Article 2, paragraph 2 of the United Nations Charter, upon which 
many publicists have relied to urge a "conventional" nonintervention 
rule apart from customary international law, requires members 
to refrain from the threat or use of force against the territorial 
integrity or political independence of any state "or in any way 
inconsistent with the purposes of the United Nations." 

^Ibid., I 182. 



150 

Force is neither threatened nor necessarily used in an armed recon- 
naissance. The threat or use of force is likely to frustrate the pur- 
pose of the mission. There is no attack upon the territorial integrity 
or the political independence of the state concerned. The reconnais- 
sance is designed to explore the existing conditions and provide a 
basis for evaluation of their possible future trend. 

One of the major purposes of the United Nations is to function 
as a center for the exchange of information upon which the inter- 
national legal rights and responsibilities of states are based. Secur- 
ing this information by a naval reconnaissance without hostile 
intent supports rather than impedes this function. 

Most relevant "nonintervention" doctrine in treaty form with 
which the United States and Nueva might be concerned has de- 
veloped within the Inter- American system. Western Hemispheric 
nations have maintained continuing pressure upon the United 
States to accept by treaty a limitation of "nonintervention" in its 
relations with them. 

At the Third International Conference of American States in 
1906, a convention was signed creating an International Commis- 
sion of Jurists which was to prepare a codification of international 
law applicable to the American Republics. The Third Committee of 
this Commission considered in 1913 a rudimentary nonintervention 
doctrine. This was, simply, that the only kinds of conduct in the 
affairs of a state, exercisable by another without intervention or 
"imposition," were "good offices" and "mediation." 

The Commission, however, in 1928 recommended for considera- 
tion by the Sixth Conference of American States the more general 
formula: "No state has a right to interfere in the internal affairs 
of another." While this statement was sufficiently flexible to be 
construed by a foreign secretary substantially as he desired, the 
provision failed to be adopted by the Conference largely because of 
the opposition of the United States. 

The United States position was altered in the Franklin Roosevelt 
Administration. The United States accepted at the Seventh Con- 
ference the formula rejected in 1928, with the further inclusion of 
"external affairs" as a prohibited area of intervention. The United 
States reserved its rights "as generally recognized by international 
law." But even this reservation was dropped in the Additional 
Protocol Relative to Non-intervention signed at Buenos Aires in 
1936. In this Protocol, the contracting parties declared inadmis- 
sible: 24 



^51 Stat. 41 (1937), 



151 

* * * the intervention of any one of them, directly or in- 
directly, and for whatever reason, in the internal or external 
affairs of any other of the parties. 

A violation of the provision was to: "* * * give rise to mutual 
consultation, with the object of exchanging views and seeking 
methods of peaceful adjustment." 

Following World War II, the United States accepted the sweep- 
ing statements of intervention, keyed to coercion, which appear in 
the Charter of the Organization of American States. 25 Article 15 



25 2 U.S. Treaties 2394. Often called the "Bogota Charter," the pact was 
signed in 1948 and entered into force for the United States in 1951. The Orga- 
nization of American States has roots in the Congress of Panama called by 
Simon Bolivar in 1826. It began to assume its current form in the International 
Union of American Republics. This was later renamed the International 
Bureau of American Republics, and still later renamed the Pan American 
Union, in a series of Inter-American Conferences between 1889 and 1910. 

The Pan American Union became an information and secretarial center 
and a focal point for many conferences, commissions and technical organiza- 
tions functioning in the Inter-American field. The Organization of American 
States continues the Pan American Union and gives formal status to a 
number of its activities. 

In addition to the Pan American Union, the permanent bodies are the 
Council (formerly the governing board of the International Bureau of 
American Republics, the predecessor of the Pan American Union) and the 
Specialized Organizations. 

The Council is the permanent executive body and a provisional organ of 
consultation. It has three dependent organs: (1) The Inter-American Eco- 
nomic and Social Council; (2) The Inter-American Council of Jurists with 
a permanent Inter- American Juridical Committee; and (3) The Inter- American 
Cultural Council. 

The Specialized Organizations are six intergovernmental organizations 
established by multilateral agreement having functions in technical areas. 
These are: (1) Pan-American Sanitary Organization; (2) Pan American 
Institute of Geography and History; (3) American International Institute for 
the Protection of Childhood; (4) Inter-American Commission of Women; (5) 
Inter-American Indian Institute; (6) Inter-American Institute of Agricultural 
Sciences. The Pan American Union is the general secretariat of the Organiza- 
tion. 

In addition to these permanent bodies there are three regularly organized 
assemblies. These are: (1) The Inter- American Conference; (2) Meeting of 
Consultation of Ministers of Foreign Affairs; and (3) Specialized Conferences. 

The Inter-American Conference is the supreme authority o/F the OAS. It 
determines general policy, institutional reform and other matters. The Inter- 
American Conference meets every five years. 

The Meeting of Consultation of Foreign Ministers is an emergency assembly 
to consider questions of urgent importance. The Meeting may be called at the 
request of any member state, unless an armed attack occurs upon one of the 
American States. In this case a meeting must be called immediately by the 



152 

of the Charter reaffirms the provisions of the 1936 Protocol. But 
added to these provisions are restrictions upon interventions by 
groups of states, prohibiting the use of armed forces, and a provi- 
sion covering : 

* * * any other form of interference or attempted threat 
against the personality of the State or against its political, eco- 
nomic and cultural elements. 

Article 16 forbids a state to : 

* * * use or encourage the use of coercive measures of an 
economic or political character in order to force the sovereign 
will of another state and obtain from it advantages of any kind. 
Article 17 provides: 

The territory of a state is inviolable ; it may not be the object, 
even temporarily, of military occupation or of other measures 
of force taken by another state, directly or indirectly, on any 
grounds whatever. No territorial acquisitions or special ad- 
vantages obtained either by force or by other means of coercion 
shall be recognized. 

Articles 18 and 19 key the application of Articles 15 through 17 
to existing treaties, including the Rio Treaty. Article 18 binds the 
American states in their international relations "* * * not to have 
recourse to the use of force, except in the case of self-defense in 
accordance with existing treaties or in fulfillment thereof." Article 
19 makes clear that measures adopted to maintain peace and 
security in accordance with existing treaties do not violate the 
principles set forth in "Articles 15 and 17." 

It would appear, however, that the reservation in Article 19 
must be construed to extend to Article 16 as well as to Articles 15 
and 17, expressly stated, since Article 16 is a specific statement of 
the general principle expressed in Article 15. Article 16 is limited 

Chairman of the Council of the OAS. The Meeting of Consultation is frequently 
referred to as "the Organ." 

An Inter-American Peace Committee performs a "watch-dog function" and 
suggests measures and steps toward settlement of a dispute. 

The Inter-American Defense Board is the military planning agency for the 
collective defense of the Western Hemisphere. An Advisory Defense Com- 
mittee, made up of military authorities from the various states, advises the 
Meeting of Consultation or the Council in case of sudden aggression. 

It should be observed that, unlike the United Nations Organization and the 
Regional Defense Organizations, the Inter-American system is made up of a 
large number of Inter-American agreements with the OAS Charter as the 
keystone. The security system, for example, is based upon the Rio Treaty, 62 
Stat. 1681 (1948). Most American States are members of the Organization 
except Canada, the newly independent Caribbean States, Guyana, and the 
British, French and Dutch dependencies. 



153 

to coercive measures, while Article 15 seems broad enough to em- 
brace coercive measures as well as noncoercive measures. An excep- 
tion applicable to the broader prohibition should embrace the in- 
cluded narrower prohibition. 

Despite these comprehensive efforts to deal with intervention 
by treaty, there has been no meeting of the minds among representa- 
tives of the Hemispheric states concerning the acts or the attending 
circumstances which give rise to an intervention. The Latin American 
tendency has been to think of intervention or "nonintervention" 
as an absolute. The United States position has been to regard inter- 
vention as an act of coercive effect and to avoid any effort to develop 
an exact definition of the concept. This might set bounds to its 
future action to repel intervention in Hemispheric affairs by non- 
Hemispheric states. 

At the Meeting of Foreign Ministers at Santiago in 1959, the 
Council of the Organization of American States was called upon to 
prepare a document listing the greatest possible number of cases 
constituting violations of the principle of nonintervention. 26 This 
was referred by the Council to the Inter- American Juridical Com- 
mittee. This Committee, while not returning an exclusive list of 
interventions, set forth a number of cases upon which there was 
agreement among the Latin American members. 27 The American 
member dissented and rendered a separate opinion. 28 

The majority of the Committee restated in substance Articles 
15 and 16 of the Charter and set forth situations considered illegal 
"interventions." These included supply of arms; training military 
expeditions; financial support of military enterprises; political acts 
affecting the form or type of government; interferences in the 
administration of justice; use of duress to obtain advantages; and 
abusive use of recognition. Interventions in the internal politics 
and administration of a state appeared especially obnoxious. Foment- 
ing of revolutions was particularly condemned. 

The report of the Inter- American Juridical Committee and other 



26 Pan American Union, Inter-American Juridical Committee, Instrument 
Relating to Violations of the Principle of Non-intervention, 1 (1959). 

27 Seven Latin American states were represented on the Committee. 

28 Op. cit., 19. Dr. Murdock, the American member, stated in his dissent : 
"The reasons for opposing an attempt to define intervention are that, like 
aggression, it is not the type of concept that is susceptible of definition. To 
attempt definition by a casuistic list of so-called cases is impracticable, illusory 
and misleading. Definition is not in the interest of peace, but rather in the 
interest of promoting intervention. It will impede the realistic development of 
international law and the statesmanlike constitutional interpretation of the 
Charter of the Organization of American States by its appropriate organs. * * * " 



154 

efforts to dispel the confusion surrounding the intervention concept 
in the Americas, 29 are likely to have little immediate impact in 
interstate practice so long as "intervention" has primarily political 
and only secondarily legal significance. There nevertheless seems 
little doubt that a simple naval reconnaissance, in view of the trend 
towards emphasizing the coercive element in intervention, will be 
accepted as legal under Inter- American treaties and conventions. 

Article 17 of the Charter of the Organization of American States, 
prohibiting violation of the territory of a state by temporary 
military occupation or by "other measures of force" is the provision 
upon which a possible argument of intervention would most likely 
be based. This provision should be read as a whole with its last 
sentence — "/n/o territorial acquisitions or special advantage obtained 
either through force or by other means of coercion shall be rec- 
ognized." 

When so read the occupation or exertion of force prohibited 
appears to be one intended to produce a value dislocation in the 
state concerned and not a temporary occupation disguised as a 
naval visit to an area suffering from a civil disturbance in order to 
obtain information. This is so even though the visit produces a 
degree of value dislocation as an unintended by-product. 

Suggested Solution : Situation 1 

No prior request should be made to the Government of President 
Cortez. One destroyer, the minimum force, should be ordered to 
Exaltacion to ascertain the facts. The cruiser and remaining destroyer 
should remain beyond Nuevan territorial waters within supporting 
distance. 

The commander of the destroyer should be instructed to interfere 
with no vessels or activities ashore unless his ship or personnel are 
attacked. He should then use only the force immediately necessary 
to protect his ship or personnel. 

If discussions are held with PDS representatives, it should be 
made clear that the United States offers the revolutionists no assis- 
tance or other encouragement. Information only is sought. 

A similar position should be taken with respect to Cortez officials 
encountered. If the Cortez government is in control of the port and 
requests the withdrawal of the United States vessel, the vessel 



29 Several comprehensive treatments of intervention by the case method 
have been published. These are Hodges, The Doctrine of Intervention (1915) ; 
Thomas and Thomas, Non-intervention (1956) and Graber, Crisis Diplomacy 
(1959). Thoughtful treatments of intervention with an emphasis upon varying 
perspectives may be found in essays by Fisher, Falk, Cardozo and Burke in 
Stanger (Ed), Essays on Intervention (1964). 



155 

should withdraw promptly when the desired information is obtained. 
If the Cortez government is not in control of the port and requests 
withdrawal of the vessel, or if the insurgents are in control of the 
port and request withdrawal, the commander must radio for in- 
structions and put to sea if force is used against him before these 
are received. 

B. PORT CLOSURE DURING INSURGENCY 

Situation 2 

U.S.S. Staton is ordered into Exaltacion and determines the officers 
and crews of Almirante Medina and Almirante Sidonia have de- 
fected. Salvaje controls Exaltacion. All Cortez forces have with- 
drawn. Outposts of Cortez troops are maintained on the roads to 
Exaltacion approximately three miles from the town limits. No 
United States citizens have been injured. Businesses are being re- 
opened. 

Salvaje states he will burn the lumberyards if Cortez troops 
advance against the town. He has furnished his guards with thermite 
grenades for this purpose. 

The Captain of Staton, who has been ashore, estimates that the 
insurgents have approximately 800 troops in Exaltacion. The pop- 
ulation of the town appears neither to support nor oppose the 
insurgents. 

Salvaje has declared a blockade of the ports of Rivadawia, Resis- 
tencia, and Santa Lucia (see map) in retaliation for the Cortez 
declaration of blockade of Exaltacion. He has so informed the 
Captain of Staton. 

At 1100 hours Almirante Medina and Almirante Sidonia are 
attacked by Cortez aircraft. Almirante Sidonia is hit. Both vessels 
depart the port and proceed through Nuevan territorial waters 
towards Rwadavia. 

At 1500 hours U.S.S. Montgomery receives a message from S.S. 
American Pioneer, a vessel of United States registry, that she is 
intercepted by Almirante Medina while proceeding to Rwadavia, 
but while on the high seas, approximately seventeen marine miles 
from the coast. The master has been informed by the boarding officer 
that a blockade has been declared by Salvaje and his vessel will 
be seized if she enters Nuevan territorial waters bound for Rivadavia. 

At 1600 hours the Cortez minesweeper, Fifth of September, inter- 
cepts, visits, searches and seizes S.S. Iotva Cornstalk within one 
marine mile from Exaltacion under the fire of PDS shore batteries, 



156 

places a prize crew aboard and proceeds through Nuevan territorial 
waters towards Resistencia. 

No signal is received from Iowa Cornstalk. She is believed of 
United States registry. What action should be taken by United 
States naval forces in the area ? 

Discussion: Situation 2 

Blockade and Belligerent Recognition 

Although Cortez has declared a "blockade" of Exaltacion, it is 
doubtful the term is used in the sense of a "blockade jure belli" 
Establishment of a blockade jure belli would be recognition by the 
de jure government of the insurgents as belligerents. This recogni- 
tion would come, awkwardly, when the insurgency is in its initial 
stage. In this initial stage Salvaje might be quickly abandoned by 
his supporters and crushed by the government forces. Recognition 
of the insurgent belligerency by Cortez would strengthen Salvaje's 
hand. 

Premature recognition by the United States of insurgents' bel- 
ligerency would probably be treated by Cortez as an "intervention." 
The United States, for example, protested as premature British bel- 
ligerent recognition of the Confederacy. The protest was made, 
although the Union Declaration of Blockade of April 1861 had 
described a blockade jure belli and the Confederates possessed mil- 
itary power and exercised de facto control over a territory greater 
than that of the Nuevan insurgents. 

The existence of insurgency in a state creates no special rights 
or obligations for other states in international law. But when the 
revolt affects the interests of foreign states in a manner requiring 
definition of their relations to the insurgents, then these foreign 
states are entitled to recognize the rebels as belligerents, whether 
the de jure government grants such recognition or not. The question 
is one of fact. 

As stated by The United States Supreme Court in The Prize 
Cases : 30 

* * * Insurrection against a government may or may not 
culminate in an organized rebellion, but a civil war always 
begins by insurrection against the lawful authority of the 
government. A civil war is never solemnly declared; it be- 
comes such by its accidents — the number, power and organiza- 
tion of the persons who originate and carry it on. When the 
party in rebellion occupy and hold in a hostile manner a certain 



so The Brig Amy Warwick et. al. (The Prize Cases), 67 U.S. (2 Black), 
635, 666 (1862). 



157 

portion of territory; have declared their independence; have 
cast off their allegiance; have organized armies; have com- 
menced hostilities against their former sovereign, the world 
acknowledges them as belligerents, and the contest a war. * * * 
If belligerency of the Nuevan insurgents was recognized by 
Cortez' declaration of "blockade," the insurgents acquire belligerent 
rights in international law and are entitled to establish their own 
blockade jure belli. 

If the United States recognized the rebel belligerency, it could 
then claim neutral status for its vessels. Its obligations would shift 
under such treaties as the Convention on the Rights and Duties of 
States in the Event of Civil Strife? 1 

Facts Bearing Upon Belligerent Recognition 

Reconnaissance by Staton has revealed the insurgents far from 
a condition possibly eliciting recognition of their belligerency 
either by the Cortez government or by another state. The insur- 
gents control one town. They have an army of 800 men. Two 
insurgent destroyers are at sea. One is probably damaged. Support 
of the insurgents by the population of Exaltacion is in doubt. 

While the insurgents have driven Cortez troops out of Exaltacion, 
the town is partially invested. The insurgents have not commenced a 
struggle to oust the ale jure government. At this stage they simply 
claim reinstatement of their party and appointment of their leader 
to high political office. 

The insurgency shows signs of developing into a full-scale revolt. 
But this does not justify belligerent recognition by the United 
States of the rebels or reading into the declaration of "blockade'' 
by Cortez a meaning which the facts revealed by the reconnaissance 
fail to support. 

Suggested U.S. Naval Policy Absent Belligerent Recognition 

The United States naval forces should deny to both the de jure 
government and the insurgents belligerent rights to establish a 
blockade jure belli with respect to United States vessels. United 
States naval forces should oppose a visit and search or attempted 
seizure by Nuevan vessels of United States vessels on the high seas. 
A simple visit by a government or insurgent vessel to give notice 
of the existence of a declared "blockade" without further action to 
obstruct or hinder an American vessel should be unobjectionable. 



31 46 Stat. 2749 (1929-31). Relevant provisions of the convention are con- 
sidered hereafter in this Discussion. 



158 

Effect of Port Closure by De Jure Government 

However, either the de jure government or the rebels, although 
they cannot maintain a blockade jure belli without belligerent rec- 
ognition, may be able to close Nuevan ports. 

United States policy concerning closure of ports by a de jure 
government is unclear because of inconsistency between American 
statutes and our diplomatic practice dealing with port closures. 
The United States seems to apply a double legal standard, one 
with respect to its own insurgents — another with respect to in- 
surgents in other states. 

The United States statutes dealing with port closures, enacted 
during the American Civil War, permit closure of an insurgent 
port in the United States simply by decree. Domestic or foreign 
vessels violating such a decree are forfeit. 32 

By our diplomatic standard, a de jure government can close ports 
in insurgent hands only by a blockade effectively maintained. Ap- 
plication of this standard is puzzling because of United States policy 
to withhold belligerent recognition. Nevertheless, the acts deemed 
necessary to close a port seem to constitute a blockade jure belli 
with the consequences flowing therefrom. 

In the Spanish Civil War, for example, the United States with- 
held belligerent recognition of the Franco insurgents. When the 
loyalist government declared certain ports and adjacent areas a war 
zone to which entry would be prevented by the loyalist fleet, the 
United States replied it could not: 

* * * admit the legality of any action on the part of the 

Spanish Government in declaring such ports closed unless that 

Government declares and maintains an effective blockade of such 

ports. * * * 33 

A similar position was taken by the United States concerning 
closures of Chinese ports in Communist hands by the Nationalist 
Chinese Government in 1949. 34 

In the Spanish and Chinese civil wars, the strength and activity 
of the insurgents produced a de facto belligerency whether other 
states recognized these facts or not. It may be that the posture of 
the United States in these conflicts was to force recognition of this 
de facto condition by the de jure governments. The United States 
would then be in a sound position to insist upon neutral rights for 



32 50 U.S. Code 205 et. seq. 

33 15 Department of State Press Releases, 192 (1936), 

34 21 Department of State Bulletin, 34 (1949). 



159 

its shipping without preceding the de jure government in recogniz- 
ing the insurgent belligerency. However, the United States has 
assumed the same posture when no de facto belligerency existed. 

Thus, in 1912, Veracruz fell into insurgent hands under con- 
ditions not warranting their recognition as belligerents. The port 
was closed by a decree of the Mexican Federal Government. 

The United States Charge d' Affaires informed the Mexican 
Foreign Office : 35 

As a general principle a decree by a sovereign power closing 
to neutral commerce ports held by its enemies, whether foreign 
or domestic, can have no international validity and no extra- 
territorial effect in the direction of imposing any obligation 
upon the governments of neutral powers to recognize it or to 
contribute towards its enforcement by any domestic action on 
their part. If the sovereign decreeing such a closure have a naval 
force sufficient to maintain an effective blockade and if he duly 
proclaim and maintain such a blockade, then he may seize, sub- 
ject to the ' adjudication of a prize court, vessels which may 
attempt to run the blockade. But his decree or acts closing ports 
which are held adversely to him are by themselves entitled to 
no international respect. The Government of the United States 
must therefore regard as utterly nugatory such decrees or acts 
closing ports which the United States of Mexico do not possess, 
unless such proclamations are enforced by an effective blockade. 
Under circumstances such as those at Veracruz, the Mexican 
Federal Government could not be expected to recognize the rebels 
as belligerents nor would the United States formally have accorded 
such recognition. 36 Yet, it is clearly settled in international law that 
a blockade of the type described and with the consequences expressed 
in the United States note is a blockade jure belli requiring a state of 
belligerency. 

The diplomatic position of the United States with respect to 
closure of ports in insurgent hands by de jure governments stems 
from the diplomatic position of the Union with repect to the Con- 
federate blockade. Confederate belligerency was never expressly 
recognized by the Union. Yet an effective "close" blockade of South- 
ern ports was maintained by the Union Navy. Precedent in diplo- 
matic correspondence has perpetuated this anomalous position of 
the United States with respect to insurgencies in other countries. 



35 VII Hackworth, Digest, 166 (1943). 

36 See I Hyde, International Law, 198-202 (1947) 



160 

Positions Concerning Port Closures Taken by 
States Other than United States 

Four positions have been taken by states other than the United 
States concerning port closures in the hands of insurgents by de 
jure governments. By the view popular in Latin America, a decree 
of closure is sufficient. A second view requires recognition of bellig- 
erency followed by imposition of a blockade jure belli. A third view, 
that expressed also in United States diplomatic correspondence, 
requires maintenance of a blockade which is de facto effective 
whether belligerency is recognized or not. A fourth view recognizes 
acts done by the de jure government, and perhaps the insurgents 
as well, within the territorial waters of the state in which the in- 
surgency occurs. This recognition is not extended to acts done on 
the high seas, unless a state of belligerency is recognized. The fourth 
view appears the most reasonable of those mentioned; and sub- 
stantially accords with generally accepted international legal doc- 
trine concerning the powers of a state within its territory. 

In 1924, the port of Frontera, Mexico, in the hands of insurgents, 
was closed by the de jure Mexican Government. The United States 
had been informed officially of the closure. It had replied that a 
port in the hands of insurgents could be closed only by an effective 
blockade. 

On 20 April 1924, Gaston, an American ship, entered Frontera 
and began unloading her cargo on the following day. In the after- 
noon, she was ordered to leave the port by a Federal gunboat, Agua 
Prieta. When this order was repeated on the 22nd, Gaston departed, 
having unloaded only part of her cargo. She left on the dock a 
quantity of bananas which quickly spoiled. 

A claim for the loss of the bananas was brought by the United 
States on behalf of the American owners before the United States- 
Mexico General Claims Commission. 

With the United States member dissenting, the Commission 
stated in part : 37 

* * * [I]t has been submitted by the respondent government 

/Mexico/ that the law protecting neutral commerce is not the 

same after the World War of 1914-1919 as it was before. The 

old rules of blockade were not followed during the war, and 

they cannot, it is submitted, be considered as still obtaining. 

Indeed, this seems to be the view of most post-war authors. 

They point to the fact that the use of submarines makes it 



37 United States (Oriental Navigation Co. Claim) v. United Mexican States, 
U.S.-Mexico, General Claims Commission (1928), Opinions of Commissioners 
(1929). 



161 



almost impossible to have blockading forces stationed or cruising 
within a restricted area that is well known to the enemy. 

On the other hand, they argue, it cannot be assumed that 
there will be no economic warfare in future wars. Is it not a 
fact that Article 16 of the Covenant of the League of Nations 
even makes it a duty for the Members of the League, under 
certain circumstances, to carry on economic warfare against an 
enemy of the League? But the economic warfare of the future, 
it must be assumed, will apply means that are entirely different 
from the classical blockade, and the old rule of the Paris Dec- 
laration of 1856 38 will have to yield to the needs of a belligerent 
state subjected to modern conditions of naval war. 

If the view set forth were accepted, there would seem to be 
little doubt that the rather moderate action of the Agua Prieta, 
consisting in simply forcing off the port a neutral vessel without 
doing any harm to the vessel or her crew, must be considered 
to be lawful. The Commissioner, however, deems it unnecessary 
to pass an opinion as to the correctness of that view, which, 
at any rate, for obvious reasons could not be adopted without 
hesitation. The Commission is of the opinion that the action 
of the Agua Prieta can hardly be considered as a violation 
obtaining before the world war. It is true that, according to 
that law, the trading of the Gaston to the Port of Frontera was 
perfectly lawful. 

The Federal Mexican authorities would not be justified in 
capturing or confiscating the vessel, or in inflicting any other 
penalty upon it. Neither would a Mexican warship have a right 
to interfere, if, for example on the high seas, it met with a 
neutral vessel bound for a port in the hands of the insurgents. 
But on the other hand, the authorities do not show, and the 
Commission is of the opinion that it cannot be assumed that 
the Federal Mexican authorities should be obliged to permit the 
unloading and the subsequent loading of a neutral vessel trad- 
ing to an insurgent port without such clearance documents as are 
prescribed by Mexican law, even in case control of the port 
should have been obtained again by those authorities before 
the arrival of the vessel to the port or be reobtained during 
her stay there. 

Now, in the present case, it cannot fairly be said that the port 



38 By the Declaration of Paris of 1856 is was stated : "* * * blockades in 
order to be binding must be effective ; that is to say, maintained by a force 
sufficient really to prevent access to the coast of the enemy." The question of 
effectiveness posed by a modern blockade jure belli is discussed in Chapter V. 



162 

of Frontera was in the hands of the insurgents at the time when 
the events in question took place. It was in fact partly com- 
manded by the Agua Prieta. That being the case, and none of 
the authorities invoked bearing upon a situation of this nature, 
the Commission holds that the lawfulness of the action taken by 
the Agua Prieta in forcing off the Gaston, which has not applied 
to the Mexican Consul at New Orleans for clearance, can hardly 
be challenged. * * * 

The situation until insurgent belligerency is recognized, in which 
case a right of blockade jure belli also is created in the rebels, is one 
in which the de jure government has embargoed a port over which 
it lacks full control. It can exercise this control within its territorial 
waters if it possesses a sufficient naval force. 

Thus it may properly repel a merchant vessel attempting to enter 
a closed port. It may, as in the case of Agua Prieta, require a vessel 
to depart the closed port within a reasonable time. The vessel may 
be seized to remove cargo transported for rebel military use. But the 
poAver of the de jure government must be exercised reasonably. Its 
power does not extend to condemnation of the vessel after seizure 
or destruction of the vessel. 39 

A contiguous zone in excess of the three marine mile limit may 
be recognized by some states for enforcement of a port closure order. 
However, by the position generally accepted, an interception and 
search to enforce a closure order can be made only within the 
territorial limit of three marine miles. Visits, searches and possible 
seizures on the high seas by the de jure government require recogni- 
tion by it of the belligerency of the insurgents, a declaration of 
blockade, and the ability to maintain an effective blockade. 

Effect of Port Closure by Insurgents 

Limitations applicable to naval action enforcing port closures by 
de jure governments upon the high seas apply to insurgent govern- 
ments. Whether similar doctrines apply to activity within territorial 
waters of a divided state is unclear. 

It has been argued that if insurgents fully control a port, they 
also control territorial waters adjacent to it. The de jure govern- 
ment is denied as a matter of law rights of territorial sovereignty 
in this area. 40 



39 See U.S. Naval War College, International Laiv Situations, 1938, 92-95. 

40 See VII Moore, Digest, 809 (1906) : "It thence follows that whenever the 
dominion over the land is lost, by its passing under the control of another 
power, whether in foreign war or civil war, the sovereignty over the waters 
capable of being controlled from the land likewise ceases." 



163 

In 1902, Professor George Grafton Wilson recommended recogniz- 
ing a de facto blockade of a port when insurgents had present before 
it the force required to mount an effective blockade had belligerency 
been recognized. The insurgents were to use only the force necessary 
to prevent entry of a merchant vessel. This force was to be used 
only after the vessel was notified by the insurgents the United 
States admitted closure of the port. 41 

Professor Wilson's memorandum was forwarded to the Depart- 
ment of State for comment. Secretary of State Hay responded in 
part: 42 

* * * Blockade of enemy ports is, in its strict sense, con- 
ceived to be a definite act of an internationally responsible 
sovereign in the exercise of a right of belligerency. Its exercise 
involves the successive stages of, first, proclamation by a sover- 
eign state of the purpose to enforce a blockade from an an- 
nounced date. Such proclamation is entitled to respect by other 
sovereigns conditionally on the blockade proving effective. 
Second, warning of vessels approaching the blockaded port 
under circumstances preventing their having previous actual 
or presumptive knowledge of the international proclamation 
of blockade. Third, seizure of a vessel attempting to run the 
blockade. Fourth, adjudication of the question of a good prize 
by a competent court of admiralty of the blockading sovereign. 
Insurgent 'blockade,' on the other hand, is exceptional, being 
a function of hostility alone, and the right it involves is that 
of closure of avenues by which aid may reach the enemy. 

In the case of an unrecognized insurgent, the foregoing con-, 
ditions do not join. An insurgent power is not a sovereign 
maintaining equal relations with other sovereigns, so that an 
insurgent proclamation of blockade does not rest on the same 
footing as one issued by a recognized sovereign power. The 
seizure of a vessel attempting to run an insurgent blockade 
is not generally followed by admiralty proceedings for con- 
demnation as good prize, and no such proceedings were nom- 
inally resorted to, a decree of the condemning court would lack 
the title to that international respect which is due from sovereign 
states to the judicial act of a sovereign. * * * 

To found a general right of insurgent blockade upon the 
recognition of belligerency of an insurgent by one or a few 
foreign powers would introduce an element of uncertainty. The 
scale on which hostilities are conducted by the insurgents must 



41 U.S. Naval War College, International Law Situations, 1902, 76-77. 

42 Ibid., 80-82. 



164 



be considered. In point of fact, the insurgents may be in a 
physical position to make war against the titular authority as 
effectively as one sovereign could against another. Belligerency 
is a more or less notorious fact of which another government, 
whose commercial interests are affected by its existence, may 
take cognizance by proclaiming neutrality toward the contend- 
ing parties, but such action does not of itself alter the relations 
of other governments which have not taken cognizance of the 
existence of hostilities. 

Recognition of insurgent belligerency could merely imply the 
acquiescence by the recognizing government in the insurgent 
seizure of shipping flying the flag of the recognizing state. It 
could certainly not create a right on the part of the insurgents 
to seize the shipping of a state which has not recognized their 
belligerency. 

* * * /A/n insurgent's right to cripple his enemy by any 
usual hostile means is essentially domestic within the territory 
of the titular sovereign whose authority is contested. To deny 
to an insurgent the right to prevent the enemy from receiving 
material aid cannot well be justified without denying the right 
of revolution. If foreign vessels carrying aid to the enemies 
of the insurgents are interfered with within the territorial limits, 
that is apparently a purely military act incident to the conduct 
of hostilities, and, like any other insurgent interference with 
foreign property within the theater of insurrection, is effected 
at the insurgent's risk. 

To apply these observations to the four points presented in 
Professor Wilson's memorandum, I may remark: 

1. Insurgents not yet recognized as possessing the attributes 
of full belligerency can not establish a blockade according to 
the definition of international law. 

2. Insurgents actually having before the port of the state 
against which they are in insurrection a force sufficient, if 
belligerency had been recognized, to maintain an international 
law blockade, may not be materially able to enforce the con- 
ditions of a true blockade upon foreign vessels upon the high 
seas even though they may be approaching the port. Within 
the territorial limits of the country, their right to prevent the 
access of supplies to their enemy is practically the same on water 
as on land — a defensive act in the line of hostility to the enemy. 

3. There is no call for the Government of the United States 
to admit in advance the ability of the insurgents to close, within 
the territorial limits, avenues of access to their enemy. That 



165 

is a question of fact to be dealt with as it arises. But in no case 
would the insurgents be justified in treating as an enemy a 
neutral vessel navigating the internal waters — their only right 
being, as hostiles, to prevent the access of supplies to their 
domestic enemy. The exercise of this power is restricted to the 
precise end to be accomplished. No right of confiscation or 
destruction of foreign property in such circumstances could 
well be recognized, and any act of injury so committed against 
foreigners would necessarily be at the risk of the insur- 
gents. * * * 

In the Chilean Revolution of 1891, members of the Chilean 
Congress boarded vessels of the Chilean fleet at Valparaiso and 
proclaimed a revolt. Rear Admiral McCann, on U.S.S. Pensacola, 
reported the insurgents had seized Chilean coast steamers for use 
as transports. No blockade had been declared and foreign vessels 
were allowed to pass in and out of the harbor. 

His successor, Rear Admiral Brown, was instructed by the Sec- 
retary of the Navy : 43 

(1) To abstain from any proceedings which shall be in the 
nature of assistance to either party in the present disturbance, 
or from which sympathy with either party could be inferred. 

(2) In reference to the ships which have been declared out- 
lawed by the Chilean Government, if such ships attempt to 
commit injuries or depredations upon the persons or property of 
Americans, you are authorized and directed to interfere in 
whatever way may be deemed necessary to prevent such acts; 
but you are not to interfere except for the protection of the 
lives and property of American citizens. 

(3) Vessels or other property belonging to our citizens which 
may have been seized by the insurgents upon the high seas * * * 
[italics added] * * * and for which no just settlement or com- 
pensation has been made are liable to forcible recovery; but the 
facts should be ascertained before proceeding to extreme, mea- 
sures. * * * 

When the Brazilian fleet revolted in 1893, Mr. Thompson, the 
Minister to Brazil, inquired from the Department of State whether 
he was "authorized to protect American merchandise placed on 
Brazilian barges against the insurgents, using force if necessary," 
it being impossible to land the cargoes in Rio at that time unless 
barges were used. 

Mr. Gresham, the Secretary of State, replied: 

There having been no recognition by the United States of 



« II Moore, Digest, 1107-1108 (1960). 



166 

the insurgents as belligerents, and there being no pretense that 
the port of Rio is blockaded, it is clear that if an American 
ship anchored in the harbor employs barges and lighters in 
transferring her cargo to the shore in the usual way and in doing 
so does not cross or otherwise interfere with Mello's line of 
fire and he seizes or attempts to seize the barges or lighters, he 
can and should be resisted. * * * 44 

Rear Admiral Benham used U.S.S. Detroit to prevent inter- 
ference with the discharge of cargoes by American merchantmen. 
He also prevented insurgent seizure of neutral vessels or other 
cargoes even though the cargo concerned would be contraband had 
a state of belligerency been recognized. 

Unlike the Chilean insurgents, the Brazilian insurgents had a 
land base at Desterro, the capitol of the State of Santa Catharina. 
The action giving rise to the incidents occurred entirely within 
Brazilian territorial waters. In neither case did the insurgents 
control the shore of the port before which the hostile naval activity 
occurred. 

During the Spanish Civil War the right of the Franco insurgents 
to control the movements of foreign vessels entering the territorial 
waters of the area of contest was acknowledged in state practice. 
The right to interfere in any manner with shipping upon the high 
seas was denied. 

Within territorial waters, a foreign vessel might be seized but 
not condemned; and halted but not attacked. 45 Judge Hackworth 
states : 46 

By their actions outside powers admitted that * * * /Franco/ 
* * * could intercept and interfere with the commerce of third 
states within the 3-mile limit. This was true both at Bilbao and 
at Barcelona, and his actions there were in conformity with 
those usually allowed to insurgents. * * * 

However, when the Spanish insurgents seized on the high seas 
the United States tanker, Nantucket Chief, carrying gasoline from 
the Soviet Union to the loyalist port of Barcelona, and tried and 
imprisoned her captain for "complicity in rebellion,'" the officer and 
his vessel were released upon informal representations by the 
United States and upon the promise by the owners to divert the 
vessel from trade with Spanish ports. 47 



44 iud., 1115. 

45 See Padelford, International Law and Diplomacy in the Spanish Civil 
Strife (1939). 

46 VII Hackworth, Digest, 171 (1943). 

47 Ibid., 173; U.S. Naval War College, International Law Situations, 1938, 
113. 



167 

The Spanish Civil War, however, was a clear situation of de facto 
belligerency, unrecognized by major powers for local political rea- 
sons. The interference accepted from Franco insurgents in Spanish 
territorial waters without contest by other states will not be accepted 
with equal submissiveness when asserted by insurgents with less 
land and sea power. 

As stated by Secretary of State Hay in 1902, the degree of in- 
surgent control actually tolerated will depend upon variant facts 
in each insurgency. The scope of the revolt, the extent to which 
the revolt is land based, the land military power of the insurgents, 
and their ability to intercept foreign merchantmen within territorial 
waters, all will have a bearing on the degree of control accepted. 

It is possible, for example, that insurgent control might be ac- 
cepted only for ships capable of military use or of cargoes clearly 
of a military nature, such as arms, ammunition, or aviation gaso- 
line. By contrast, control by the de jure government over entrances 
to closed ports might be accepted as plenary within territorial 
waters. 

Writers seem agreed that in seizures within territorial waters the 
offending vessel and its cargo cannot be condemned unless reason- 
able compensation is arranged promptly. Except in revolutions of 
the scope of the Spanish Civil War, which was a clear de facto 
belligerency, insurgents probably are restricted to forcing off a 
foreign vessel from a closed port and many not seize the vessel even 
for the purpose of a temporary arrest. 48 

Precedents to be used as a guide to govern the relations between 
foreign states and de jure and insurgent activities in territorial 
waters of a divided state are likely to be developed infrequently in 
the future. This is due to the inability of either party to conduct 
naval activity "inshore" when faced with land-based air power or 
shore ground fire. The contestants may claim powers of visit and 
search and perhaps seizure on the high seas. But these powers are 
likely to be contested absent recognition of their belligerency by 
the foreign state involved. 

Suggested Solution: Situation 2 

The visit of American Pioneer by Almirante Medina is unobjec- 
tionable when limited to a warning that the vessel will be inter- 



48 See U.S. Naval War College, International Law Situations, 1988, 92-93 
in which the same standards are stated for both the de jure government and 
the insurgents. Cf. Wilson, "Insurgency and International Maritime Law," 
1 AJ.I.L., 46 (1907) where a distinction is made between the de jure govern- 
ment and the insurgents. 



168 

cepted in territorial waters if she proceeds into Rivadavia. Such 
a warning would be necessary for a blockade jure belli when the 
proclamation by the blockading power could not reasonably be 
expected to have come to the attention of the merchant vessel con- 
cerned. On the other hand, a search of the vessel or a seizure of it 
on the high seas would be prevented. 

Within Nuevan territorial waters, a search of American Pioneer 
by Almirante Medina may be permitted. Further action by the in- 
surgent vessel must be limited to denying entrance to the port of 
Rivadavia. American Pioneer must not be sunk nor may it or its 
cargo be seized. 

The Master of American Pioneer should be informed he will not 
receive an armed escort into Rivadavia. He should be told the United 
States recognizes no blockade by the insurgent forces. A United 
States naval unit will interfere if his vessel is threatened on the 
high seas or in territorial waters with destruction or seizure. 

Assuming Nueva is a party to the Convention on The Rights and 
Duties of States in the Event of Civil Strife* 9 the United States 
may capture an insurgent warship, such as Almirante Medina, which 
damages one of its vessels. The captured warship is returned to 
the control of the de jure government. The captains of Almirante 
Medina and Almirante Sidonia should be informed of the intentions 
of the United States naval force and its intention to assert the 
treaty rights of the United States. 50 A United States ship should 
be dispatched to the area of Rivadavia to observe the rebel destroyers. 

The nationality of S.S. Iowa Cornstalk should be determined. If 
S.S. Iowa Cornstalk is an American ship, the Captain of U.S.S. 
Montgomery should inform the Captain of Fifth of September the 
United States will recognize the diversion to the harbor of Resis ten- 
da only for examination of her cargo. Condemnation of the vessel 
or mistreatment of her officers and crew will not be permitted. 

If the cargo of Iowa Cornstalk is material susceptible to military 
use, other than arms or ammunition or other war material, the 
United States will permit condemnation of the cargo only if the 



49 46 Stat. 2749 (1929-31). 22 Western Hemisphere states, including the 
United States, are parties. The major purpose of the Convention is to prevent 
the support of revolutionists from the territories of adjacent states by supply 
or training of troops. 

50 Convention on Duties in Event of Civil Strife, Article II, paragraph 2. 
An insurgent merchant vessel interfering with foreign shipping is subject to 
condemnation by the capturing state as a prize. In neither case is the insurgent 
vessel treated as a pirate, although it may be declared a pirate by the law of 
the state in which the revolt occurs. The Convention states such a determina- 
tion binds no other parties. 



169 

owners are promptly compensated. If the cargo consists of arms 
and ammunition or other war material, the United States will 
establish no conditions for compensation of the owners. The United 
States is obliged to prevent such exports pursuant to Article 1(3) 
of the Convention on the Rights and Duties of States in the Event 
of Civil Strife. 51 

C. LANDING OF ARMED FORCES TO PROTECT PROPERTY 
DURING CIVIL DISTURBANCES 

Situation 3 

The Captain of Staton reports Cortez army units, estimated as one 
infantry division, moving into Union and Victoria, east and west of 
Exaltacion. Light armor has reconnoitered PDS roadblocks near 
Exaltacion during the past six hours. Cortez aircraft, overfly- 
ing Exaltacion, have not been fired upon. 

Salvaje has informed the Captain of Staton that if Cortez forces 
move against Exaltacion he will "scorch its earth." A businessman 
from Exaltacion, visiting Staton, last night, confirms Salvaje has 
issued orders to his troops to burn Exaltacion and its lumberyards. 
During the diversion thus created, Salvage's army will move along 
the coast road to the Luna Mountains, Almirante Medina and Al- 
mirante Sidonia returning to cover this movement. Arms and other 
supplies are being landed for Salvage's use by Antioka on beaches 
near the Luna Mountains. 

An officer of Staton, posted to observe rebel activity in the lumber- 
yards, reports PDS troops are blowing safes in the offices and remov- 
ing their contents. They are also removing typewriters and other 
small equipment. All trucks and other vehicles have been removed 
and assembled with other requisitioned civilian transportation. 

A few minutes ago, our Charge d' Affaires at Dolores, radioed 
Cortez has rejected Salvage's terms. Cortez intends to crush the 
revolt and will begin immediate operations against Exaltacion. 

U.S.S. Eutaw Springs (carrier), with 600 marines with airlift 
capability on board, has arrived from Coloso, Antioka, and has 
joined U.S.S. Montgomery off Exaltacion, Rear Admiral Jones, 
aboard Eutaw Springs, now commands United States naval forces 



51 For greater detail concerning the problems here examined, see Dickenson, 
"The Closure of Ports in Control of Insurgents," 24 A.J.I.L., 69 (1930) ; 
Woolsey, "Closure of Ports by the Chinese Nationalist Government," 44 A.J.I.L., 
350 (1950) ; Powers, "Insurgency and the Law of Nations," 16 The JAG Journal 
(Office of The Judge Advocate General of the Navy), 55, 59-62 (1962); 
Briggs, The Laiv of Nations, 1000-1004 (2d Ed., 1952) ; III Hyde, International 
Law, 2183-2187 (1947). 



170 

in the area. He is instructed to "take the measures necessary in your 
discretion to protect American lives and property in Exaltation, 
using due care, however, to preserve a strict impartiality between 
the parties and to employ the minimum force necessary." 

Eear Admiral Jones has the information set forth. His staff is 
considering legal problems involved in landing the marine force 
to seize the lumberyard and the pumping station in Exaltation. 
Should the force be landed, and, if so, when? 

Discussion: Situation 3 

Armed Action to Protect Persons and Property 

Armed actions by the United States to protect the lives and 
property of its citizens have been frequent. Forty cases in this 
category were listed by Solicitor Clark of the Department of State 
in 1912. Some of these actions were pursuant to the Piatt Amend- 
ment, which since has been abrogated. 52 Twenty-one cases have 
occurred since Clark's compilation. 

By contrast, actions by the United States in other states primarily 
for political objects have been infrequent. The most important of 
these prior to World War II were in Cuba (1895-98), Panama in 
1903, Haiti in 1915 and in Nicaragua in 1926-27. Action in the 
Nicaraguan civil war in 1926 was initially nonpolitical but later 
developed political overtones. 

United States expeditions to Archangel and Siberia in 1918 are 
often called "interventions." However, these expeditions were diver- 
sions undertaken against Germany after the military collapse of 
Czarist Russia. 

Nevertheless, it is amply clear that whatever the United States 
legal posture may have been before World War II concerning 
unilateral uses of military force for limited "peacetime" objectives, 
its legal obligations have since shifted, both under international 
custom and treaties. Its membership in the United Nations and its 



52 Clark, Right to Protect Citizens in Foreign Countries by Landing Forces 
(Department of State, Division of Information, Series M, No. 14, 5 October 
1912). The Piatt Amendment, 31 Stat. 897 (1902) was attached to an Army 
appropriation bill and later embodied in a treaty between Cuba and the United 
States. The Amendment provided in part : 

* * * /T/he government of Cuba consents that the United States may 
exercise the right to intervene for the preservation of Cuban independence, 
the maintenance of a government adequate for the protection of life, 
property and individual liberty and for discharging the obligations with 
respect to Cuba imposed by the treaty of Paris on the United States, now 
to be assumed or undertaken by the government of Cuba. * * * 
The abrogation appears in IV U.S.T., 4054 (1938). 



171 

participation in regional security organizations have influenced the 
legal position of the United States profoundly. Admiral Jones 
might have landed the marines without hesitation in 1870. Today 
he must pay close attention to the treaty commitments of the United 
States. 

An initial problem faced by the Admiral and his staff will be 
to sift out proposed actions which might be regarded by authorita- 
tive decision makers in the general community as "interventions" 
and thus "delicts"' from actions which almost certainly will not be 
so regarded. Reference to traditional international law texts will be 
found of litle help. 

The term "intervention" has been employed by observers to seek 
factual orientation in terms of particular behavior and at the same 
time to refer to legal conclusions stemming from their observation. 
Not only are varied practices characterized as "intervention," but 
the legal conclusions embraced by the term are obscure. There is 
much discussion of "intervention" — and little is ever done about it. 
As stated by Professor Burke : 53 

* * * The same observer sometimes uses a single label to desig- 
nate very different phenomena, and of course an occasional sim- 
ilarity in labels by no means implies similarity in factual or 
legal reference. Among the major identifiable confusions of this 
type are the employment of the same terms to refer to the facts 
of coercive conduct and to supposed legal consequences and the 
use of identical concepts to refer, without qualification, to both 
lawful and unlawful coercion. An accompanying confusion is 



53 Burke, "The Legal Regulation of Minor International Coercion : A 
Framework of Inquiry" in Stanger (Ed) Essays on Intervention, 88 (1964). 
Professor Burke's essay contains a concise statement of the current positions 
of a number of publicists concerned with minor coercion and presents a 
suggested multifactual framework for analysis of these policy exchanges. Thus, 
he commences with an appraisal of the process of interaction, identifying 
the participants, their objectives, the conflict situations, the base values 
involved, the strategies of the participants, the degrees of intensity of coercion 
obtained and the long-term effects and the conditions under which the coercion 
occurs. He then examines the claim process — categorizing the claims and 
counterclaims asserted in the coercive exchanges considered with a clear 
statement of claims relating to particular sanctioning goals (prevention, 
deterrence, restoration, rehabilitation, and reconstruction). This is followed 
by an examination of the process of decision concerning these claims and 
counterclaims with recommendations for the clarification of community policy. 

At a high level of decision making within the general community or within 
a state, this analysis or major features of it can be pursued effectively — 
although the lower the echelon of decision, the shorter the time for decision 
and the more uncertain the available evidence, the more compressed and less 
detailed such an analysis must become. 



172 

to be seen in the common failure to attempt to distinguish be- 
tween varying intensities of coercion. * * * 

Usually "intervention" is used to describe "impacts" of executing 
state policies in the domestic or foreign affairs of another state. 
The impacts may be the direct result of interference or may be a 
remote result. Confusion has occurred because the execution of 
most state policies will have a degree of impact in the affairs of 
other states. Consequently, to discriminate between actions likely 
to be described by authoritative decision-makers of a state or gen- 
eral community as "delictual" and actions which are not likely to 
be so described, publicists have preferred a coercive impact test. 
Thus Professor Burke's orientation is in terms of coercion although 
he offers a comprehensive and useful analytical scheme by which 
the context of a particular interference can be related to a process 
of decision concerning this interference. Standard, and less com- 
prehensive, statements of the "coercive impact" test appear in the 
Discussion to Situation 1. The more obvious the coercion in a par- 
ticular confrontation the simpler these schemes for decision making 
are to apply. 

Coercion, however, is a concept developed most intensively in 
municipal legal systems — for example, in cases of fraud, undue 
influence, duress and the like. In these cases it is often possible 
to produce evidence concerning a mental response of a specified 
individual to some antecedent act by another. 

When the concept of coercion is transported to the international 
arena, evidential lacunae tend to be encountered in an attempt to 
relate any specified response to any antecedent act. The person or 
persons whose wills are said to have been coerced typically are 
indefinite. A search for coercive motive provides no ready answer to 
the problem because state officials responsible for the interferences 
under examination dissemble and conceal their motives behind 
smokescreens of censorship and diversionary action. 

No matter how comprehensive the analytical scheme, the scheme 
cannot be applied effectively in a particular controversy unless the 
facts can be found; nor can it be used in a "constitutive" sense — 
(or in the sense of general policy guidance to support and rein- 
force a legal order) — unless the decision makers involved possess 
major fact finding resources. When the decision maker has the 
intelligence facilities to develop these facts, multifactor analytical 
approaches such as that suggested by Professor Burke are ideal. 
But for decision makers at low policy echelons — and these are 
responsible for much of the minor (and in the future may be re- 
sponsible for much of the major) international interferences — a 



173 

touchstone for "impermissible" interferences is needed which is 
within the span of intelligence or "factfinding" capabilities of the 
official concerned. In the writer's opinion, much of the indiscriminate 
labeling of interstate interferences of varying intensities as 'inter- 
vention" stems from a search for coercion frustrated by a "credibility 
gap," which causes information sources to be ignored or censorship 
or other features rendering information sources inaccessible. A lack 
of evidence has led publicists to presume that interferences by one 
state in the domestic or foreign affairs of another are coercive with 
the conclusion that if the interferences are coercive they probably are 
"delictual." 

In the analysis which is here suggested, the writer assumes that 
in many confrontations involving high intensities of coercion the 
analytical scheme offered by Professor Burke is the most effective 
type proposed. The writer also assumes that such a scheme can be 
used with equal effect in low intensity coercive situations when fact- 
finding resources are extensive. However, he suggests for "low-level" 
decision makers dealing with coercive situations of a low intensity 
with limited fact-finding resources a concept of "intervention" which 
is administratively geared. 

Intervention: Administratively Geared 

The first requirement for an administratively geared intervention 
formula is definition of a zone of interstate action in which inter- 
ferences by one state in the affairs of another are "potentially im- 
permissible." Interstate action beyond this zone can then be ignored 
so far as delictual aspects of the action are concerned. Action within 
the zone can be tested using presumptions of fact and precise forms 
of analysis. 

This zone of "potentially impermissible" interference is most 
effectively defined by a reference to the practice of the Security 
Council of the United Nations. While action by the Council has 
been frequently blocked by the veto, it is nevertheless the inter- 
national institution before which most significant "intervention" 
controversies are brought. In almost a quarter century of practice, 
standards applied by a majority of the Security Council and the 
changes in these standards are amply clear. From an examination 
of the Council record concerning Greek frontier incidents, for 
example, support by Albania, Bulgaria and Yugoslavia of Greek 
guerrillas was unquestionably regarded as delictual by a majority of 
the members although action was vetoed by the Soviet Union. 54 



54 U.N. Doc. S/486. See Goodrich and Hambro, Charter of the United Nations, 
266-267 (2d Ed., 1949) in which the controversy is briefly discussed. 



174 

Security Council practice will change. Its membership may expand 
and its perspective may be modified. The zone of "potentially im- 
permissible" interferences should change with these changes in com- 
position, viewpoint and practice. 

From the perspective of a state decision maker, particularly one 
at a low administrative level, an outline of the sensitive zone of 
"potentially impermissible" interference can be defined by his care- 
ful judgment concerning the likelihood that a majority of the 
Security Council will regard the proposed act as: (a) a threat to 
the peace, breach of the peace or act of aggression under Article 
39; (b) requiring provisional measures under Article 40; or (c) 
requiring enforcement action under Articles 40 or 41. Although the 
act does not fall within one of these categories, is it nevertheless 
of a nature which should alert the state decision maker to a response 
by officials of the state affected which will fall within one of the 
three categories mentioned? The latter determination will cover 
many of the "marginal" cases of "intervention." 

By directing the attention of a state policy maker to the practice 
of the Security Council, the doctrine of "intervention" is withdrawn 
from confusing shadows cast by deductions from a theoretical "in- 
dependence" of states and by the record of state protests concern- 
ing "intervention." 

The Security Council is taken as a point of orientation in setting 
a zone of "potentially impermissible" interferences, rather than the 
General Assembly, the World Court, or regional security organiza- 
tions for several reasons. 

An "intervention" concept should be geared to the working of 
institutions organized to manage international conflict. Apart from 
its feature as a transient threat presented to general harmony, 
international conflict is an important feature in developing inter- 
national solidarity. The skill with which the conflict is managed 
determines which feature dominates. 

While opinions of the World Court bearing upon "intervention" 
no doubt are influential in the Security Council, the Court deals 
sporadically with crystallized fact situations. It is incapable of 
shepherding a conflict through its full course. Its decisions are 
usually outdated when rendered. Stringent limitations upon its 
jurisdiction, delays in getting cases before it, and lack of an effective 
method to enforce its decisions limit the continuing participation 
of the Court in conflict produced by interferences by one state in 
the affairs of another. 

The World Court also deals principally with cases "amenable to 
legal solution." The issues presented usually are those thought 



175 

amenable to resolution by a shift of wealth from one community to 
another. Losses due to physical damage to property and personal 
injuries or death can often be compensated by wealth shifting. But 
the kind of damage often produced by interferences — breakdowns in 
loyalty patterns, disturbances of balances of power, and destruction 
of social institutions — cannot be equated to wealth losses and assessed 
using wealth units. 

The burden of dealing with "intervention" controversies thus 
tends to fall upon the Security Council, the General Assembly and 
regional security organizations. General Assembly practice is believed 
not a satisfactory point for orientation because of the flux in 
standards developed there due to the membership of new states in 
the United Nations. In recent years, for example, a double standard 
appears to have emerged in the General Assembly with seizures of 
territory, such as the seizure of Goa by India or Indonesian action 
against the Dutch in West New Guinea tacitly approved, while 
similar action by former colonial powers is condemned. This pattern 
may possibly be duplicated in the Security Council but the change 
process is likely to be slower and the sense of responsibility of 
Security Council members is likely to be greater than in the General 
Assembly. 

The practice of regional security organizations concerning inter- 
vention is dominated by local standards. The local "non intervention" 
doctrine established by treaty and usage in the Western Hemisphere 
is an example. Although this local practice must be considered in 
an "intervention" transaction within the aegis of these local arrange- 
ments, the practice is too deverse for the basis of a general "inter- 
vention" formula. 

The chief purpose of the United Nations, as set forth in Article 
1(1) is to: 

* * * /M/aintain international peace and security and to that 
end : to take effective collective measures for the prevention and 
removal of threats to peace, and for the suppression of acts of 
aggression or other breaches of the peace, and to bring about 
by peaceful means, and in conformity with the principles of 
justice and international law, adjustment or settlement of inter- 
national disputes or situations which might lead to a breach of 
the peace; * * * 

The Organ primarily responsible for attaining this goal under 
the Charter is the Security Council. The enforcement power of the 
Council is limited by the "peace attainment" statement of its func- 
tions; the veto and double veto by a permanent member pursuant 
to Article 27 and its construction; and the domestic jurisdiction 



176 

clause in Article 2(7). 55 The domestic jurisdiction limitation does 
not apply to the peace enforcement functions of the Council specified 
in Chapter VII. 

The institution which deals at some stage with most of the serious 
intervention controversies produced by interferences and which is 
charged with primary responsibility for maintaining international 
peace and security under the United Nations Charter is a logical 
point of reference for an "administratively geared" concept of 
"intervention." A study of the prior practice of the Security Council, 
whether a particular decision proposed was vetoed or not, can 
provide a common compass for guidance and a sensitive receptor for 
changing concepts of rights and wrongs in intervention. 

Within this general zone of "potentially impermissible" inter- 
ference, staked out by references to Security Council practice and 
estimates of probable current responses of Security Council members, 
there exists a spectrum of permissible action. Presumptions of 
"permissibility" or "impermissibility" are guides to a decision maker. 

The point will be discussed in detail in Situation 6, Chapter IV, 
that reasonable judgments can be made concerning the ability of 
international security organizations, taken collectively, to diffract 
the physical features of a ceorcive exchange and project the con- 
flict on a verbal level. These international security organizations 
have developed, as a dominant function in peace maintenance, 
"rheostatic" activity — or intensity reduction of interstate conflict. 

If a reasonable judgment indicates the contemplated action, 
falling within the zone of "potential impermissibility," is also 
beyond the "rheostatic" influence of international security organiza- 
tions, taken collectively, then the interference is presumptively 
impermissible — or an "intervention." The key to such a judgment 
is the probability of unmanageable "escalation of violence" stem- 
ming from the proposed action. 

The form of the action may be peculiarly offensive and under the 
existing circumstances, including the "rheostatic" abilities of inter- 
national security organizations, pose a threat of unmanageable 
escalation. It has been indicated in Situation 1 that air intrusions 
into the territorial airspace of another state seem to be treated as 
"interventions." Deploying military forces into the territory of 
another state has been characterized frequently as an "intervention" 
or "aggression." Professor Quincy Wright, for example, describes 
"aggression" as : 56 



55 The "double veto" describes a veto of consideration whether a particular 
question is procedural, and thus not subject to the veto, or substantive and 
thus subject to the veto. 

56 Wright, "The Prevention of Aggression," 50 A.J.I.L., 514, 526 (1956). 



177 

* * * /T/he use of, or threat to use armed force across an 
internationally recognized frontier, for which a government, 
de facto or de jure, is responsible because of act or negligence, 
unless justified by a necessity for individual or collective self- 
defense, by the authority of the United Nations to restore inter- 
national peace or security, or by consent of the state within 
whose territory armed force is being used. * * * 

It is not, however, the "armed" or "military" nature of the force 
deployed or threatened to be deployed, which should render the 
action "presumptively impermissible." The size of the force in 
relation to its mission and the intensity of its employment or 
threatened employment are the critical features. 

Furthermore, it might be argued persuasively, based upon practice 
since World War II, that deployments of armed forces by Free- 
World states, with isolated exceptions, are designed to achieve 
stability to permit ordered change and thus should be presumed 
"permissible interferences" unless special facts indicate the con- 
trary. 

Publicists placing emphasis upon military force as a basic element 
of an "impermissible interference" view military force in its usual 
pre-World War II functions of "internal stability-external change." 
Military force was then used principally to perpetuate a value 
pattern within a state and to disturb value patterns without the 
state to direct a flow of values to the sponsoring power base and to 
diminish the power of adversaries. This is a difficult image to 
eradicate. 

Since World War II, however, the principal role of military force 
in the organization of Free-World states has been redirected to 
"internal change-external stability." Prior to the separation of 
Algeria from France, for example, the civil-action program of the 
French Army, coupled with its policing functions, emphasized 
change in the economic structure of Algeria and social reform. The 
Armed Services in the United States, apart from their external 
defense functions, have been made instruments of internal change, 
notably in matters of racial discrimination and in industrial and 
educational practices through defense contracts. 

With few possible exceptions, on the other hand, external employ- 
ments of armed force have been to procure stability with ordered 
change accepted and accommodated. This has been the posture of 
France in Indo-China, the United States and SEATO members in 



178 

South Vietnam, the United States and other members of the United 
Nations Command in Korea and Great Britain in Malaysia. 

A strong case for the permissibility of unilateral or multilateral 
military action, apart from any idea of self-defense or collective 
self-defense, can be built upon the interim stabilizing function of 
armed action. Interim action was not mentioned in the United 
Nations Charter because special forces were to be earmarked for 
that purpose and directed by a Military Staff Committee. 

Basic to an understanding of the requirement of "interim stabiliz- 
ing action'' is an understanding of the distinction between "settling 
a dispute or controversy by force" and "military action to stabilize a 
situation and prevent its complication pending settlement by pacific 
means." The international institutional action required to manage 
conflict is similar to the extraordinary power recognized in all legal 
systems and described in the Anglo-American legal system as "pre- 
rogative power." 

In the constitutional division of powers in the United States, for 
example, elements of this extraordinary power can be found in the 
executives, the legislatures and the courts. However, time elapses 
before this power can be mobilized. There are delays in invoking 
action by international organizations. Time is also lost before the 
machinery of these organizations can be set in motion. Without some 
device to compensate for these delays, the decisions of international 
security organizations would exhibit the anachronistic features of 
decisions by the World Court or international arbitral tribunals. 

If there were a well-organized police force available for employ- 
ment by the United Nations to discharge its functions of peace 
maintenance, one function of this force would be interim stabiliz- 
ing action until decisions by appropriate Organs of the United 
Nations could be rendered. Interim stabilizing action is only one 
aspect of police functions — but satisfies the pressing demand for 
temporary order. 

Absent such a force, states — individually and collectively — have 
undertaken this interim stabilizing function. Not only is there 
latitude in this respect for voluntary state action, but there is a 
moral obligation to act — and a legal obligation to act may be develop- 
ing in international custom built around the Charter. 

Interim stabilizing action, although usually within the zone of 
"potentially impermissible" interference, hitherto described, is the 
most likely form of action involving military force applied with 
high intensity to be regarded by the general community as "per- 
missible." The action should be within the limits of the ability of 
international security organizations to exercise their "rheostatic" 



179 

functions — or to project the conflict on a verbal level. Interim 
stabilizing action is keyed to the functions of international security 
organizations. It is not a substitute for the effective performance of 
these functions nor should the action be taken in a manner which 
frustrates the performance of these functions. 

The nature of interim stabilizing action is illustrated by a com- 
parison of Anglo-French action in Suez in 1956 and United States 
action in Lebanon in 1958. Both actions involved deployments of 
military force in the territory of another state. The Anglo-French 
action seemed regarded by the general community as "impermis- 
sible." While criticized by some publicists, the United States action 
in Lebanon seemed regarded by the general community as "per- 
missible."' 

Anglo-French Action in Suez and United States Action 
in Lebanon Compared as Interim Stabilization 

The Anglo-French military action against Egypt in 1956 was 
intended in part to insure free passage of commerce through the 
Suez Canal, to protect foreign nations in the area, and to frustrate 
Egyptian nationalization of property of the Canal Company. As 
stated by Sir Anthony Eden in the House of Commons : 57 

* * * /G/rave issues are at stake, and unless hostilities * * * 
(between Israel and Egypt) * * * can quickly be stopped, free 
passage through the canal would endanger the ships actually 
in passage. The members of crews and passengers would total 
many hundreds, and the value of ships which are likely to be 
in passage is about £50 million (sterling) excluding the value of 
cargoes * * *. 

There were also political objectives which became apparent as 
the action progressed. One objective was to frustrate growing 
Soviet control in Egypt. Another was to interrupt extensive Egyp- 
tian aid to the Algerian rebels. 

Anglo-French forces had been gradually assembled in the Eastern 
Mediterranean since the Egyptian Nationalization decree on 26 
July 1956. Approximately 70,000 to 100,000 personnel were in the 
Anglo-French striking force. Egyptian forces sustained casualties 
in excess of 1,000 before the cease-fire. 

Anglo-French military action commenced before Israeli troops, 
attacking in the Sinai Peninsula and moving rapidly, were within 
striking distance of the Canal. The action was also taken shortly 
after the United Kingdom and France had vetoed a Resolution in 



& U.N. Doc. S/PV 749, 30 Oct. 1956, p. 2. 



180 

the Security Council ordering Israeli withdrawal to the 1949 arm- 
istice line and calling upon members to refrain from the threat or use 
of force in the area inconsistent with the purposes of the United 
Nations. 

The Council commenced consideration of this Resolution at 
approximately the time on 30 October 1956 that the United Kingdom 
presented its ultimatum to Israel and Egypt. This ultimatum re- 
quired withdrawal of both forces ten miles from the Canal, that 
hostilities cease, and that Anglo-French forces be permitted tempo- 
rarily to occupy Port Said, Ismailia and Suez. If these conditions 
were not met within twelve hours, Anglo-French forces would 
intervene in the strength necessary to secure compliance. 

Sir Pierson Dixon, apparently conscious of the importance of an 
"interim sustaining action''' argument, sought to delay action on the 
Resolution before the British and French vetoes. Sir Pierson 
emphasized in his argument the inadequate military force available 
to the Council and the urgency of the situation. He asserted : 58 
If we felt that the Security Council could in fact at this 
moment separate the parties and protect the Canal, of course 
we would rather proceed in this way. But in spite of the views 
which have been expressed to the contrary, I think I must 
make the point again: we feel grave doubt whether in fact 
action could be taken in this Council with sufficient speed. 
Events are moving too fast, too fast for words even from the 
Council to have the right effect. * * * 
Sir Pierson emphasized also : 59 

* * * Our intervention is a temporary measure which we are 
obligated to take in the absence of any effective collective 
machinery for restoring peace and order in a matter of such 
extreme urgency * * * /and/ * * * will be terminated as soon 
as the threat to peace no longer exists. * * * 

After the Resolution was vetoed by the intervening states, the case 
was removed from the agenda of the Security Council, over the 
opposition of the intervenors, pursuant to a Resolution offered by 
Yugoslovia. The case was then placed before the General Assembly, 
acting under the Uniting for Peace Resolution of 1950. The General 
Assembly called for a cease-fire and withdrawal of forces behind 
the 1949 armistice line. 60 



«* U.N. Doc. S/PV 749, 30 Oct. 1956, p. 24. 

59 U.N. Doc. S/PV 751, p. 9. 

60 A concise account of procedure before the Security Council and there- 
after before the General Assembly may be found in Yearbook of the United 
Nations, 25-34 (1956). The Yugoslav Resolution, as supported by the United 
States, appears as U.N. Doc. S/3719. 



181 

By this time, Anglo-French forces had virtually destroyed the 
Egyptian air force, which had approximately 90 MIG-15 fighters 
and 28 Iluyshin bombers. Israeli troops, assisted by Anglo-French 
seaborne and airborne landings which had cut off Egyptian Sinai 
forces from the main body of the Egyptian army concentrated south 
and southwest of Cairo, had virtually complete control of the 
Sinai Peninsula. Israeli patrols reached the Canal by 4 November. 

A cease-fire was obtained on 7 November. Before ceasing hostilities, 
Anglo-French forces had seized firm control of key points in the 
Canal area. Prior to the cease-fire the Secretary General had 
assured the United Kingdom and France that the Canal would be 
reopened and free navigation secured through it. An international 
force sufficient to secure observation of the 1949 armistice would be 
established by the United Nations. 61 

The landing of United States forces in Lebanon in 1959 pre- 
sented striking contrasts to Anglo-French operations in Suez. Unlike 
the Anglo-French operations, United States action in Lebanon was 
primarily political and not economic in aim. The landings were at 
the request of the de jure government of Lebanon. Small forces 
were landed without preparatory fire. 62 There was no significant 
hostile action. Casualties and property damage were minimal. 

The Lebanese action was undertaken in a clear emergency. Such 
an emergency had apparently been recognized by the Security 
Council in its response to the Lebanese complaint of 22 May 1958 
that the United Arab Republic was intervening in its internal 
affairs by supplying and training rebels. 63 

Although the intervention in Lebanon by the United Arab Re- 
public had not only been verified by Western intelligence services 
but was notorious from press releases, the Security Council on 
11 June 1958 directed the Secretary General to establish an observa- 
tion group in Lebanon to verify the reports of outside interference. 
The Resolution was amenable to construction that the Secretary 
General was to act to prevent outside interference. 64 However, the 
Secretary General construed his power as simply one to investigate. 



61 For a history of subsequent events, including Anglo-French withdrawal, 
development of a United Nations Emergency Force and clearance of the Canal, 
see Yearbook of the United Nations, 39-56 (1956). 

62 3,500 troops were landed initially. The force was increased to approximately 
15,000. 

es U.N. Doc. S/4007, 22 May 1958. 

64 U.S. Doc. S/4023, 11 June 1958. The Resolution authorized the Secretary 
General to "ensure that there is no illegal infiltration of personnel or supply of 
arms or other material across the Lebanese border." For the construction by the 
Secretary General see U.N. Doc. S/PV 827, 15 July 1958, p. 13. 



182 

The investigation by the Observation Group was frustrated by 
the rebels. The rebels held 90% of the Lebanese frontier over which 
supplies and troops from the United Arab Republic might have 
come. The Observation Group was denied access to this area. 65 

The Observation Group had no aircraft for reconnaissance. It 
conducted few night patrols because of fire drawn from both sides. 
It had no electronic sensing devices to be used for night surveillance 
from fixed observation posts. It is conventional practice, both in 
regular armies and among guerrillas, to move supplies and troops 
at night in the face of air superiority. This air superiority was 
enjoyed by the de jure government. 

Thus, before the United States landings on 15 June 1958, the work 
of the United Nations Observation Group was completely ineffectual 
and showed no promise of improvement. 66 The de jure Lebanese 
government was certain to fall unless the United States responded to 
its request. 

The Security Council was informed promptly of the United 
States action. In the Security Council debates which followed, the 
position of the United States was one of cooperation with the 
Council. The Council was encouraged to undertake the protection 
of Lebanon against external interference. United States troops 
were instructed to cooperate with the United Nations Observation 
Group and did so. As Ambassador Lodge stated before the Security 
Council : 67 

Our purpose in coming to the assistance of Lebanon is 
perfectly clear. As President Eisenhower explained this morn- 
ing, our forces are not there to engage in hostilities of any kind, 
much less to fight a war. Their presence is designed for the sole 
purpose of helping the Government of Lebanon at its request 
in its effort to stabilize the situation brought on by threats from 
outside, until such time as the United Nations can take the steps 
necessary to protect the independence and political integrity of 



65 U.N. Doc. S/4040 and Add. 1, 1 July 1958. The First Report by the Obser- 
vation Group stated : 

* * * It will be seen, therefore, that the areas of primary concern to the 
Observation Group are those where the problems of accessibility are greatest, 
both from the standpoint of topography and of obtaining freedom and 
security of movement. 

66 The Observation Group reported its work initially impeded by an adverse 
reaction among the rebels to the United States landings. U.N. Doc. S/4069, 
25 July 1958. However the strength of the Group and cooperation by the rebels 
later improved, although there were no night observations by the Group except 
in a few instances. 

67 u.N. Doc. S/PV 827, 15 July 1958, p. 6. 



183 

Lebanon. This will afford security to the several thousand 
Americans who reside in that country. That is the total scope 
and objective of the United States Assistance. 
The United States offered a draft Resolution to the Security 
Council which, in addition to supporting activity by the Observa- 
tion Group and recommending extension of this activity, re- 
quested : 68 

* * * /T/he Secretary General immediately to consult the 
Government of Lebanon and other member states as appropriate 
with a view to seeking an agreement for additional measures, 
including the contribution and use of contingents, as may be 
necessary to protect the territorial integrity and independence 
of Lebanon and to ensure that there is no illegal infiltration of 
personnel or supplies of arms or other material across the 
Lebanese border. 

This Draft Resolution was vetoed by the Soviet Union. The vote 
was 9 in favor of the Resolution, 1 abstention, and 1 against. 

A Resolution offered by the Soviet Union, condemning the United 
States and ordering an immediate withdrawal of its troops, was 
defeated by a vote of 8 to 1. There were two abstentions — Japan 
and Sweden. 

A Resolution offered by Sweden, calling for withdrawal of the 
Observation Group while United States forces were in Lebanon, 
was defeated by a vote of 9 to 2. The favorable votes were those of 
Sweden and the Soviet Union. 

A Resolution thereafter offered by the United States to remove 
the case for consideration by the General Assembly did not come 
to a vote. The Council adjourned on 22 July 1958 after receiving 
a suggestion by the Secretary General that he might undertake to 
bring the parties to an agreement. A "Summit Meeting" also was 
then thought imminent. 69 

The case was brought again before an emergency session of the 
General Assembly in August 1958. British troops had entered 
Jordan in July 1958 in response to a request by King Hussein. 
The Assembly considered a six-point program of action proposed 
by the United States but threw the matter back into the lap of the 
Secretary General. 70 The Secretary General was directed to con- 
sult with the Arab states and make practical arrangements to 



« U.N. Doc. S/4050. 

69 This Summit Conference did not materialize but the United States and the 
Soviet Union agreed on an emergency session of the General Assembly. See 39 
Department of State Bulletin, 342 (1958). 

70 39 Department of State Bulletin, 337 et seq. (1958). 



184 

facilitate "early withdrawal of foreign troops from Lebanon and 
Jordan." 71 

The United States withdrew its troops from Lebanon in late 
October and November of 1958. General Chehab, who received rebel 
support, as well as support from government elements, had been 
named President in free elections held in July. Political unrest 
stemming from external sources had greatly diminished. 

Both Anglo-French action in Suez and United States action in 
Lebanon were within the zone of "potentially impermissible" inter- 
ference. The military force deployed was significant. The intense 
Anglo-French use of military force might reasonably have been 
viewed by the Security Council as a threat to the peace, a breach 
of the peace or act of aggression. United States action in Lebanon 
might have provoked a response by other states requiring provisional 
measures under Article 40 or enforcement measures under Article 
40 or 41. 

Although falling within the zone of "potentially impermissible" 
interference, no doubt a mild presumption of "permissibility" can be 
said to exist based upon the past pattern of military action by 
Free- World states. The Anglo-French action, however, was of such 
intensity that it might have exceeded the "rheostatic" action of 
international security organizations, taken collectively, had it not 
been for Soviet involvement in Hungary at the same time. 

Furthermore, rather than pitching their action as interim stabiliza- 
tion, supporting functions of the United Nations, the United King- 
dom and France prevented Security Council action by a veto. 
Reference of the case to the General Assembly was opposed by them. 

Nationalization of the Canal was under study by the Security 
Council before the Anglo-French intervention. It was only when 
Anglo-French military objectives had been achieved and the ad- 
verse effect of world opinion appraised that the United Kingdom 
and France were prepared to support a renewal of United Nations 
functions in the crisis. 

United States operations in Lebanon, by contrast, were closely 
geared to efforts by the United Nations to achieve stability in 
Lebanon and provide for ordered change in its government by 
free elections. United States action was clearly within the "rheo- 
static" or intensity reducing range of international security orga- 
nizations. 

Anglo-French action in Suez and United States action in Lebanon 
can be supported as "collective defensive" actions under Article 
51 of the United Nations Charter. It will be suggested in greater 



7i U.N. Doc. S/4053. 



185 

detail in the Discussion of Situation 6, Chapter IV, that no matter 
how effective international organizations become as peace maintain- 
ing institutions, Article 51 permits the use of armed force to meet 
armed attack. The test in such a case is the necessity and propor- 
tionality of the responding coercion vis-a-vis the initiating coer- 
cion. Likewise, Article 2(4) establishes maximum limits on the use 
of force no matter how ineffective international security organiza- 
tions become as peace maintaining institutions. 

Assuming the Anglo-French action did not exceed this maximum 
limit, as a threat or use of force against the territorial integrity or 
political independence of a state, or in any other manner inconsistent 
with the purposes of the United Nations, defense arguments might 
be persuasive. 

United States action in Lebanon was defended by government 
spokesmen as "collective self-defense" under Article 51. It was 
also attacked by a few publicists as "impermissive" interference. 72 
The defense arguments offered were unnecessary, however, because 
the interim sustaining nature of the United States action was clear; 
and a growing general appreciation of the importance of such 
organizational services in the light of the present state of inter- 
national security organization functions, promises future community 
characterizations of sustaining actions as permissible. The interim 
sustaining action argument was open to the United States but 
foreclosed to the United Kingdom and France. 

General criticism of the Anglo-French action in Suez should 
not be regarded as condemnation of unilateral national action 
to protect the lives and property of citizens under circumstances 
in which the protection is of an interim nature pending action by an 
international security organization. If the unilateral national action, 
entailing minimum force, obviates further action by an international 
security organization, the interest of the general community is well 
served. 

Policies in Western Hemisphere Concerning Action 
To Protect Property During Civil Disturbances 

Western Hemispheric treaties and conventions, many of which were 
mentioned in the Discussion to Situation 7, purport to establish new 



72 Propriety of the United States action in Lebanon was questioned both under 
the United Nations Charter and under the Kellogg-Briand Pact. Professor 
Quincy Wright concluded the United States, to justify its intervention in 
Lebanon, "would have to prove that the troubles in that country inducing 
President Chamoun to request that intervention were primarily due to 'sub- 
versive intervention' from outside." Wright, "United States Intervention in 
Lebanon," 53 A.J.I.L., 112, 125 (1959). 



186 

"intervention" doctrines. These doctrines have been vaguely framed. 
An actual meeting of the minds upon various definitions appears 
to have been blocked by a heavy alloy of emotion. 

Agreement upon the meaning of "intervention" in the Western 
Hemisphere seems closer under the Organization of American 
States than ever before. The statement by Secretary Hughes and the 
Sixth Conference of Inter-American States in 1928 continues, how- 
ever, to highlight this gray area of affairs so far as the protection 
of citizens and their property is concerned. As Secretary Hughes 
commented : 73 

* * * The difficulty, if there is any, in any one of the American 
Republics, is not one of external aggression. It is an internal 
difficulty, if it exists at all. 

From time to time there arises a situation most deplorable and 
regrettable in which sovereignty is not at work, in which for a 
time in certain areas there is no government at all, in which for 
a time and within a limited sphere there is no possibility of 
performing the functions of sovereignty and independence. 
These are the conditions which create the difficulty with which 
at times we find ourselves confronted. 

What are we to do when government breaks down and Amer- 
ican citizens are in danger of their lives ? Are we to stand by and 
see them killed because a government in circumstances which 
it cannot control and for which it may not be responsible can 
no longer afford reasonable protection? I am not speaking of 
sporadic acts of violence, or of the rising of mobs, or of those 
distressing incidents which may occur in any country however 
well administered. I am speaking of the occasions where govern- 
ment itself is unable to function for a time because of difficulties 
which confront it and which it is impossible for it to surmount. 
Now it is a principle of international law that in such a case 
a government is fully justified in taking action — I would call 
it interposition of a temporary character — for the purpose of 
protecting the lives and property of its nationals. * * * Of 
course the United States cannot forego its right to protect its 
citizens. * * * 

Secretary Hughes emphasized in his statement the protection of 
the persons of United States citizens and only incidentally protection 
of their property. The need for protection of property has been 
alleviated to a degree by investment guarantees developed under 
successive Mutual Security Acts and a supporting framework of 



73 Report of the Delegates of the United States of America to the Sixth Inter- 
national Conference of American States, 14 (1928). 



187 

executive agreements made between the United States and countries 
participating in the mutual security program. The Foreign Assis- 
tance Act of 1961, for example, authorizes guarantees to assure 
protection in whole or in part against : 74 

Loss of investment * * * in the approved project due to ex- 
propriation or confiscation by action of a foreign government, 
and 

Loss due to war, revolution or insurrection * * * 
These losses normally are excluded from casualty insurance cover- 
age issued by commercial carriers. But the insurance principle is the 
same in mutual security program guarantees, the risk of loss being 
distributed over the taxpaying public and being substantially elim- 
inated by the law of large numbers. 

Supplementing executive agreements with mutual security pro- 
gram countries, in whose territories investments are guaranteed, 
provide for subrogation by the United States to any claims which 
its insured nationals may have. The claims are to be settled by 
negotiation or arbitration. 75 

The risk of expropriation remains considerable among Western 
Hemispheric states. However, the risk of loss due to civil dis- 
turbances is reduced due to rapidly increasing efficiency of the 
national military and police forces. The spread of the Castro-Com- 
munist revolutionary influence may of course present acute problems 
no matter how efficient local military and police establishments 
become. 

These changes in the guaranteeing of foreign investments and 
efficiency of local military and police protection may account for 
statements in recent authoritative works suggesting armed force 
cannot be used to protect the persons and property of citizens in 
another state in the Inter-American system. 

Thomas and Thomas, for example, declare with reference to the 
Inter-American system : 76 

No state has a right to intervene in another state in favor 
of the lives or liberty of its nationals except through intercession 
of diplomatic representation in a friendly conciliatory action 
without any character of coercion, undertaken only after there 
has been previous exhaustion of the possible local remedies 
and a clear denial of justice. If this fails, the legality of further 
action is problematical. * * * 



74 P.L. 87-195 (4 Sept. 1961) Sections 221 et seq. 

75 E.g., Executive Agreement with Honduras, 6 U.S. Treaties 2049 Section 
1(c) (1955). 

76 Thomas and Thomas, Non-intervention, 327 (1956). 



188 

These authors also state, after a discussion of the responsibility 
of states for injuries to aliens and the right of a state to collect 
debts by force : 77 

Thus, it can be said that intervention by force by a state for 
protection of the property of its citizens in another state has 
been made illegal under the particular international law of the 
Americas. 
Dr. Graber writes : 78 

How could frequent American interventions for the protection 
of citizens in foreign countries be reconciled with the non-inter- 
vention doctrine? The answer is simple. There was no need to 
reconcile them because the United States did not consider 
measures taken for the protection of citizens as intervention. 
When the interventionary character of these measures was 
finally conceded in the twentieth century, armed protection of 
citizens stopped and unarmed coercion on their behalf 
dwindled. * * * 

Statements such as these, when read in context, probably are 
intended to apply to armed or coercive efforts to collect debts or 
damages resulting from injuries to citizens. Although the "non- 
intervention" principle, applied to the Inter-American system, is 
stated broadly by the authors cited and others^ it is doubtful the 
proposition stated by Secretary Hughes in 1928 is or can be obsolete. 
The United States must protect its citizens when a local government 
cannot protect them. 

No Latin American government appears to have contested the 
assertion by Secretary Hughes when restricted to the conditions 
stated by him. The majority of the Inter- American Juridical Com- 
mittee included no case such as that stated by Secretary Hughes 
within the list of impermissible interferences prepared by it in 1959. 
Indeed, the Committee cited with apparent approval the statement 
by Accioly : 79 

The protection of nationals, no matter where they may be, 
is not only a right but a duty of the state. Since it is not, there- 
fore, an abusive act, it lacks one of the basic elements con- 
stituting intervention. 

Construction of Article 15 of the Charter of the Organization of 
American States, which takes into consideration the immediately 
related Articles 16, 17 and 18, suggests the actions prohibited are 



77 Ibid., 343. 

78 Graber, Crisis Diplomacy, 336 (1959). 

79 Inter-American Juridicial Committee, Instrument Relating to Violations of 
the Principle of Non-intervention, 10 (1959). 



189 

those that are "abusive" or "coercive." The military action spe- 
cifically mentioned, such as the "armed force" in Article 15; the 
"military occupation or * * * other measures of force" in Article IT; 
and the "force except in the case of self-defense" in Article 18, 
seems to refer to action with political orientation. 

Military action taken to acquire territory, supersede a govern- 
ment, obtain special concessions or to secure various political ad- 
vantages, seems easily distinguishable from limited action to protect 
the persons and property of citizens which is terminated when the 
persons or property are withdrawn or are otherwise secured. Ap- 
plications of military force for this limited purpose can also be made 
without appreciable coercive effect upon the wills of a local power 
elite, if coercion is put in issue, and — as pointed out previously in 
this discussion — need not be of such an intensity that it constitutes 
a threat to the peace or a breach of the peace under Chapter VII 
of the United Nations Charter. 

Suggested Solution : Situation 3 

While military action of a preventive nature, such as that con- 
templated at Exaltacion, may or may not receive such publicity that 
it will be discussed by the Security Council of the United Nations 
or by the Council of the Organization of American States, the action 
should be planned and conducted so that it is actually preventive 
and protective. The threat of the property of citizens must be clear 
and if lives of citizens are also found to be endangered the case for 
action will be much stronger. 

The case is not one of self-defense as discussed by Secretary 
Webster in The Caroline.* While the threat of damage must be 
clear, there need not be that "instant, overwhelming" necessity 
"leaving no choice of means and no moment for deliberation" cited 
by Webster to Lord Ashburton. 

Measures unnecessary to protect lives and property should not be 
attempted. If action is initiated by either the United Nations or the 
Organization of American States before the marines are landed, 
United States action should be coordinated with the supplementary 
measures taken by these institutions. If no action is taken by these 
organizations, which is the more likely situation in view of the 
short time involved, the United States position should be one of 
forestalling a controversy concerning loss of lives or property by 
the use of minimum force. If a threat of force will accomplish this 
aim, the action should be limited to the threat. Only the commanding 
officer on the spot can formulate an accurate judgment concerning 

so II Moore, Digest, 412 (1906). 



190 

this. An argument for interim sustaining action should be built to 
support the interference as "permissible." 

The facts available to Rear Admiral Jones suggest Salvaje 
desires to avoid contact at this time with Cortez forces and is pre- 
paring to withdraw from Exaltacion. The lumberyards and much 
of the town can be quickly destroyed by Salvaje's army. 

At this critical stage of the revolt, Salvaje is probably desperate. 
His ability to continue the fight, in view of his failure to inspire 
support in Exaltacion, depends upon his ability to reach the Luna 
Mountains. His eventual success, once he gets there, will be based 
upon his ability to enlist foreign support and to discourage foreign 
support of the Cortez government. 
As stated by George Modelski : 81 

That every internal war creates a demand for foreign inter- 
vention is implicit from the logic of the situation. The demand 
may not always be capable of being satisfied, but it is always 
there, and has been found to exist not only in modern political 
history but in all known international systems. * * * 
Salvaje will thus be likely to cooperate with United States forces 
in the immediate future to avoid interference with his sources of 
overseas supply. Rear Admiral Jones should capitalize upon this 
predisposition of Salvaje. 

A landing of forces without warning would antagonize the 
insurgents. They might cause property damage or kill United States 
citizens before being driven off. But the insurgents should clearly 
understand that the United States will land forces to protect the 
lives and property of its citizens with or without the consent of 
Cortez or Salvaje and there is a legal basis for this action. Salvaje 
should be informed that the necessary force is on hand and can be 
landed immediately. He should also be informed that if Almirante 
Medina and Almirante Sidonia appear to cover withdrawal of the 
PDS troops, and the property of United States citizens is destroyed 
during this withdrawal as a diversion, the ships will be captured and 
returned to the Cortez government pursuant to the Convention on 
the Rights and Duties of States in the Event of Civil Strife* 2 

Salvaje should be informed that if United States citizens are 
uninjured and their property unharmed, our forces will neither 
interfere with nor support his withdrawal nor will we undertake 
to inform Cortez forces the withdrawal is occuring. If Salvaje 
indicates he will persist in his plan to burn the lumberyards and 
Exaltacion, the marines should be landed in the force required to 



81 Modelski, The International Relations of Internal War, 6 (1961). 

82 46 Stat. 2749 (1929-31). 



191 

evacuate United States citizens to Eutaw Springs; protect our con- 
sulate; and prevent if possible, or otherwise to minimize, damage 
to the lumberyards. 83 

D. SEIZURE OF PROPERTY BY DE JURE GOVERNMENT 
Situation 4 

Three hours after Rear Admiral Jones notified Salvaje the 
United States was prepared to land forces to protect the lives and 
property of its citizens, Almirante Medina arrived in Exaltation, 
took 75 insurgents on board, and proceeded along the Nuevan 
coast through territorial waters to the east. The remaining Salvaje 
forces evacuated Exaltation during the night, moving by truck 
east along the coast road. Cortez forces, attempting to intercept 
this truck movement at Resistenda, were driven off by fire from 
Almirante Sidonia. 

Cortez units moved into Exaltation in division strength this morn- 
ing. The last units closed at 1000 hours. 

At 1200 hours, Rear Admiral Jones is notified by United States 
Naval Headquarters at Coloso, Antioka, the Nuevan Ambassador 
this morning presented to the Foreign Secretary an ultimatum that 
Antiokan marines who were landed last night on the south coast 
of Nueva in the vicinity of the Luna Mountains be withdrawn within 
twelve hours. All landings of supplies from Antioka in that area 
must also cease within that time. Failure by Antioka to comply 
with the terms of the ultimatum would result in full military and 
naval action being taken against the Antiokan beachheads in Nueva 
and against the territory and people of Antioka. 

At 1730, Rear Admiral Jones receives a message from the com- 
mander of Staton that the Cortez Army commander in Exaltation 
has taken the following action: (1) His officers have boarded 
Harp, West Wind and Cypress, freighters owned by the Virginia 
Pine Products Corporation and of United States registry. They have 
informed the respective masters that their vessels have been seized 
for the duration of "the emergency." (2) The resident managers of 
the lumberyards in Exaltation have received written notice from the 
local Cortez Army headquarters that all lumber and machinery in 



83 For additional material on the points considered, see Offut, The Protection 
of Citizens Abroad by the Armed Forces of the United States (1928) ; I Hyde, 
International Law, 245-281 (1947) ; Martin, The Policy of the United States as 
Regards Intervention (1921). Problems in the diplomatic protection of nationals 
are examined in Dunn, The Protection of Nationals (1932). Dunn examines the 
use of force briefly in Chapter II. 



192 

their yards are requisitioned, effective immediately, for military use. 
They have been required to submit inventories within twelve hours 
and periodic reports at intervals of twenty- four hours thereafter in- 
dicating stock levels. 

In response to a message from Rear Admiral Jones our Charge 
d' Affaires in Dolores reports the Cortez Government has ordered a 
general mobilization. He is unable to determine the intentions of 
Cortez concerning requisitions or expropriations of property and 
cannot determine what orders, if any, have been issued to the Cortez 
Army commander in Exaltation. 

The masters of Harp, West Wind and Cypress and the managers 
of the lumberyards are to board Staton at 2100 for a conference 
concerning the action of the local Army commander. 

The Captain of Staton requests instructions concerning the posi- 
tion of the United States naval force with respect to these events and 
requests also instructions concerning information which should be 
given the masters and managers at the scheduled conference. The 
staff of Rear Admiral Jones is considering the request of the Captain 
of Staton. What instructions should he be given? 

Discussion : Situation 4 

Types and Methods of Expropriation 

The property of aliens may be expropriated by many methods. 
The method may be indirect, as by a confiscatory tax or a devalua- 
tion of currency. The method may be direct, as a taking of property 
by judicial process to construct a highway. 

The taking may be "individualized," such as seizure of a par- 
ticular business enterprise, usually called "expropriation." It may 
be "collective," such as a seizure of all industries of a particular 
type, often called "nationalization" or "socialization." 

The alien may be compensated for his loss. However, most ex- 
propriations are confiscatory. No compensation is offered, the com- 
pensation is grossly inadequate, or the loss is not compensable. 

Examples of confiscatory expropriations are fines, imposed as a 
sanction to support enforcement of laws; seizure, and destruction or 
sale, of weapons, vessels or products used in the commission of 
crimes; and abatements of nuisances, such as destruction of diseased 
or offensive animals and destruction or denials of use of unsafe 
structures. 

These and many other forms of expropriations occur in all states, 
including the United States. This country has recognized a similar 
expropriatory authority in other states, subject to an international 
legal minimum standard of conduct. 



193 

The international legal standard in the view of the United States 
was expressed succinctly by Secretary of State Hughes in 1923 to 
the Norwegian Foreign Minister. The United States, during World 
War I, had requisitioned Norwegian construction contracts, materials 
and completed vessels. 

Following the war the Norwegian claims were arbitrated. The 
arbitral tribunal awarded a large sum to Norway. But in the opinion 
of United States officials the tribunal had gone beyond the terms 
of submission. A particular ground of objection was the decision by 
the tribunal that a belligerent could not define the extent and 
termination of an emergency. The United States promptly paid the 
award, but Secretary Hughes in his cover letter wrote in part : 84 
* * * It is the view of this Government that private property 
having its situs within the territory of a State, * * * including 
as in the present case property produced or created therein 
and never removed therefrom, is from the standpoint of inter- 
national law subject to the belligerent needs of the territorial 
sovereign quite regardless of the nationality of the owners, 
provided that in case of its requisition just compensation be 
made. Due process of law applied uniformly and without dis- 
crimination to nationals and aliens alike and offering to all just 
terms of reparation or reimbursement suffices to meet the re- 
quirements of international law; and thus the requisitioning 
state is free to determine the extent and duration of its own 
emergency. * * * 

The requisitions discussed by Secretary Hughes occurred during 
war. The property of a "neutral" was taken. However, requisitions 
are proper in any emergency for an apparent public use if the 
conditions described by Secretary Hughes are met. 

Summary takings of property are characteristic of national and 
international emergencies. No extensive formalities or hearings need 
precede this type of expropriation if thereafter an adequate op- 
portunity is provided the owner by the expropriating state to secure 
compensation or reparation. 

The requisition must be nondiscriminatory. The requisition policy 
must apply to nationals and aliens alike. Aliens must bear the brunt 
if they possess the only kind of property needed by the expropriating 
state. 

Requisitions of property of aliens when the property is temporarily 
within the territory of the expropriating state and the alien is not 
a resident of the state have presented special difficulty. For example, 
alien property may be seized while in transit through the territory. 



84 II Foreign Relations of the United States, 627 (1923). 



194 

A vessel is usually taken within the territorial waters of a state 
for a transient purpose, such as loading or unloading cargo. 

The tendency in cases of this type is to insist upon strict procedural 
safeguards before seizure. A clear showing of a major emergency is 
expected. The application to public use must be certain. Prompt and 
adequate compensation is demanded. 

When the property temporarily within the expropriating state 
has been derived from local resources or when the property was not 
derived from local resources but the owner is a resident alien 5 the 
stringent requirements of the "transient property" rule may be 
relaxed. 

Angary 

Seizure of vessels temporarily within territorial waters of the 
expropriating state has been discussed by publicists both as an 
exercise of the "Right of Angary" and as a "requisition." 

Before the 18th century, particularly during the Middle Ages, 
various rulers claimed a jus angariae. The idea of nationality of a 
ship or its owner was not then clearly delineated. The obligation 
of a sovereign to protect his own subjects in the territory of another 
ruler was ill-defined. 

An alien at this time was regarded as a privileged subject of the 
ruler in whose territory he resided. The alien had correlative obliga- 
tions in return for the special royal protection to which he was 
entitled. 

Alien vessels thus could be prevented from leaving port in the 
royal discretion. (Arret de Prince.) Their crews could be impressed. 
Ancient English kings, for example, constantly traveling between 
England and their lands on the Continent, pressed into service any 
suitable vessel which could be located when passage was desired. 
Jus angariae was utilized in the conduct of routine royal business 
and pleasure. Compensation for the forced use often was rendered. 85 

The modern relation of "angary" to "war" stems from several 
sources. Efforts in the Hague Conventions and Regulations to cir- 
cumscribe the power of requisition were influential. Angary has 



85 For a typical statement of the ancient and modern rights of angary and a 
confusion of these with the modern practice of requisition, see II Oppenheim, 
International Law, 759-766 (7th Ed., 1952) ; Bullock, "Angary" 3 Brit. Y.B. Int. 
L., 99 (1922-23). Bullock states at 3 Brit. Y.B. Int. L., 122: "* * * [I]t is of the 
essence of true right of angary that it shall be a requisition of means of trans- 
port for purposes of transport." A sinking of ships would not be a case of 
angary. Bullock also declares angary a right of sovereignty which cannot be 
exercised in occupied enemy territory. He regards the right as extending to all 
means of transport, sea, air and land. 



195 

been discussed extensively in cases concerning assertion of the right 
against uncondemnned vessels and property in the hands of prize 
courts during war. The most important factor, unquestionably, has 
been the disproportion between the peace and war needs of a state 
for ocean shipping. The supply of a modern army places extra- 
ordinary demands upon the ocean shipping of any state. The 
capacity of an enemy for destruction of shipping in modern war out- 
strips the friendly capacity for construction. Consequently, con- 
trol is asserted over all vessels other than those of allies useful for 
military and civilian transport. 

A right of requisition of foreign vessels by a de jure government 
of a state seems recognized in any major emergency. The so-called 
"modern right of angary'* no longer extends to the impressment of 
seamen. It is limited to the seizure of vessels or other means of 
transport. Consequently, if angary has any mo4ern relevance, tied 
as it seems currently to a state of war, this relevance must be to 
seizures of vessels or other means of transport by insurgents. 

As applied to insurgent seizures, angary can have currently no 
major importance. For example, a state which extends belligerent 
recognition to insurgents cannot later look to the de jure government 
for compensation for insurgent exercises of a right of angary against 
their vessels. But absent this belligerent recognition, the obligation 
of the de jure government to compensate for insurgent seizures is 
questionable and compensation is seldom made. 

Therefore, today, it seems preferable to deal with seizures of 
vessels simply as requisitions. 86 As indicated by Secretary Hughes, 87 
the usual practice is to permit the requisitioning state to determine 
the degree of emergency. Compensation will be demanded whether 
the emergency is great or small, real or imagined. The state of the 
alien whose property was taken may insist upon stricter procedural 
safeguards when the property is transient. Procedural preconditions 
to taking the property might be demanded if in the judgment of 
the state of the alien the gravity of the emergency was slight. The 
law of "angary" supplies few useful guidelines. 

International Agreements Concerning Expropriations 
Since not only requisitions during emergencies but expropriations 



86 Bullock, who rejects the relationship of angary to war or military necessity, 
and applies the doctrine to seizures of means of transport to be used for trans- 
port, may lay the basis for an argument that due to the general community 
interest in transport a special legal regime should apply to interferences with 
it. The argument would be stronger if angary could be said to embrace com- 
munications facilities as well. See Bullock, op. cit. 

87 See Fn. 84, supra. 



196 

of all types have become common practice, especially among new 
states or in states which have undergone revolutionary change, these 
expropriations typically being confiscatory, attempts have been made 
to protect the interests of aliens by treaty. Perhaps the most 
ambitious attempt towards this end in a multilateral convention was 
the Economic Agreement of Bogota, one of a number of agree- 
ments reached at the Bogota Conference of 1948. 88 

Article 22 of this Agreement provides equitable treatment for 
foreign capital. Article 24 reaffirms that foreign capital should be 
subject to national laws and measures might be taken to insure that 
it was not used to intervene in the politics or prejudice the security 
or "fundamental interests" of the receiving state. 
Article 25 recited : 

The States shall take no discriminatory action against in- 
vestments by virtue of which foreign enterprises or capital may 
be deprived of legally acquired property rights, for reasons or 
under conditions different from those that the constitution or 
laws of each country provide for the expropriation of national 
property. Any expropriation shall be accompanied by fair com- 
pensation in a prompt, adequate and effective manner. 
The United States pressed unsuccessfully for inclusion of a pro- 
vision such as Article 25 in the Charter of the International Trade 
Organization, considered at Havana shortly before the Bogota Con- 
ference. The Havana Charter was not ratified by a sufficient number 
of states to come into force. This proved to be the fate also of the 
Economic Agreement of Bogota. 

The General Agreement on Tariffs and Trade, developed as a 
substitute for the Havana Charter, after it became apparent that the 
latter would never be ratified, did not deal with the rights of 
individuals. There were no provisions concerning direct expropria- 
tions. 

In bilateral treaties and executive agreements with many states, 
the United States has dealt specifically with expropriation problems. 
In the Treaty of Amity, Economic Relations and Consular Rights 
of 1958 made with the Sultan of Muscat and Oman, superseding a 
treaty made in 1833, the following typical provision appears: 89 
1. Each Party shall at all times accord fair and equitable 
treatment to nations and companies of the other Party, and to 



88 X Documents on American Foreign Relations, 516 (1948). For a comment 
on the Agreement with a critical appraisal of the many confusing reservations 
made by the parties, see Lockwood, "The Economic Agreement of Bogota," 42 
A.J.I.L., 611 (1948) ; 18 Department of State Bulletin, 308 (1948). 

* 9 11 U.S. Treaties (Part II, 1960) 1836. 



197 

their property and enterprises, and shall refrain from applying 
unreasonable or discriminating measures that would impair their 
legally acquired rights and interests. 

2. Property of nationals and companies of either Party, in- 
cluding direct and indirect interests in property, shall receive 
all possible protection and security within the territories of the 
other Party. Such property shall not be taken except for a 
public purpose, nor should it be taken without prompt payment 
of just compensation. Such compensation shall be in an effec- 
tively realizable form and shall represent the full equivalent 
of the property taken; and adequate provision shall have been 
made at or prior to the time of taking for the determination 
and payment thereof. * * * 

Analogous provisions are not inserted in executive agreements 
with mutual security program countries. However, these agreements 
do set forth procedures for settling claims for losses resulting from 
the occurrence of risks subject to guarantees under the Mutual 
Security Acts. There is an implication that compensation will be 
demanded by the United States or may be awarded by an arbitral 
tribunal. 

The United States, and many other countries, have treaties 
regulating the requisitioning of vessels temporarily within the 
waters of the requisitioning states. Some of the older treaties, such 
as the Treaty of 1785 between the United States and Prussia, 90 
prohibit requisitions. The more recent treaties admit the propriety 
of the requisitions and stipulate the measure of compensation. 91 

Modern conventions bearing upon the conduct of hostilities, in- 
cluding the Hague Conventions of 1907 92 and the Geneva Conven- 
tions of 1929 and 1949, contain provisions applicable both to requi- 
sitions and contributions. The contribution is a greneral levy, in 
effect a special tax, which is usually pecuniary in nature but which 
may be in kind. 

Hague Convention IV imposes extensive restrictions upon the 
authority of a military occupant in hostile territory over private 



<*> II Malloy, 1482. 

91 For a collection and analysis of a number of these treaties, see Harvard 
Draft Convention on Rights and Duties of Neutral States in Naval and Aerial 
War, 31 A.J.I.L., Supp. 2 (1936) ; U.S. Naval War College, International Law 
Situations, 1926, 65-87. 

92 The Hague Conventions of 1907 were an amplification of the Regulations 
attached to Hague Convention II of 1899 with respect to the law and customs 
of war on land and Hague Convention III of 1899 adapting to maritime war- 
fare principles of the Geneva Convention of 1864 for amelioration of the condi- 
tion of the wounded. 



198 

property within its power. Private property cannot be confiscated. 93 
Requisitions must be proportioned to the resources of the country. 94 
Contributions must adhere so far as possible to the rules of assess- 
ment and incidence of taxes. 95 Proper orders and receipts are re- 
quired for levies of both types. 96 Communications and transport 
equipment and weapons and ammunition may be seized but must be 
restored or paid for when peace is made. 97 

Provisions in Hague Convention IV, relative to requisitions of 
private property, are amplified by the 19Jf9 Geneva Convention 
Relative to the Protection of Civilian Persons in Time of War. 98 
This Convention sets forth a number of requirements for minimum 
physical safety and well-being which apply to the entire populations 
of countries in military conflict. Hague Convention IV is not equally 
broad. 

However, the only broad provision of the Geneva Convention with 
possible relevance to requisitions imposes an obligation upon con- 
tracting parties to allow free passage of medical and hospital stores, 
objects necessary for religious worship, and clothing and tonics 
intended for children under fifteen, expectant mothers and mater- 
nity cases. 99 These items cannot be captured or requisitioned in 
transit. 

The remaining protected categories of persons in the Geneva 
Convention include those "who * * * find themselves, in case of a 
conflict * * *, in the hands of a Party to the conflict * * * of which 
they are not nationals." 10 ° While these categories are also broader 
than those included in Hague Convention IV, persons are not in 
the Geneva categories unless the states of which they are nationals 
are parties to the Convention and lack normal diplomatic relations 
with the state in conflict. 

Subject to these limits to the categories of protected persons in 



»3 36 Stat. 2277, Art. 46 (1909-1911). 

94 Ibid., Art. 52. 

95 Contributions are pecuniary assessments or assessments in kind which are 
imposed generally. 

«* 36 Stat. 2277, Arts. 51, 52. 

97 Ibid., Art. 53. 

98 6 U.S. Treaties 3516 (1955). 

99 Ibid., Art. 23. This obligation is qualified by the condition that the party 
in conflict or occupying a hostile territory "is satisfied that there are no serious 
reasons for fearing" : that the consignments will be diverted ; ineffectively con- 
trolled ; or that a definite advantage may accrue to the military efforts or 
economy of the enemy through substitutions. It is probable that any effective 
operation of the Article is eliminated by the imposition of these conditions. The 
matter is discussed in greater detail in Chapter V. 

100 Ibid., Art. 4, 11. 



199 

the Geneva Convention, pillage of and reprisals against the prop- 
erty of private individuals are prohibited both in the territory of 
a party to the conflict and in territory under hostile military 
occupation. 101 

There is no prohibition of requisitions of labor and services of 
aliens in the territory of a party to the conflict, but the alien is 
placed upon the same basis as a national of the party with respect 
to wages, working conditions and hours. 102 If restrictive measures 
have been taken against the alien's property, such as "vesting" 
pursuant to a Trading With the Enemy Act, the measures must be 
"cancelled" in accordance with the law of the Detaining Power as 
soon as possible after the close of hostilities. 103 It is not clear that 
the "restrictive measures" contemplate "requisitions," although it is 
arguable that requisitions are included. 

Within occupied territories, the occupying state can requisition 
the services of protected persons over the age of eighteen necessary 
for the needs of the army of occupation, public utility services, and 
for feeding, sheltering, clothing, transporting or maintaining the 
health of the population of the occupied territory. The protected 
person must be paid a fair wage and his work must be proportionate 
to his physical and intellectual capacities. 104 

Foodstuffs and medical supplies may not be requisitioned except 
for use by the occupation forces and administrative personnel and 
then only after the requirements of the civilian population are taken 
into account. 105 Arrangements are to be made to ensure that fair 
value is paid for any requisitioned goods. 106 

Civilian hospitals may be requisitioned only temporarily and 
then only in cases of urgent necessity for the care of the wounded 
and sick. The material and stores of civilian hospitals cannot be 
requisitioned so long as they are necessary for the needs of the 
civilian population. 107 Relief supplies may not be diverted except in 
cases of urgent necessity in the interests of the population of the 
occupied territory and then only with the consent of the Protect- 
ing Power. 108 



101 Ibid., Art. 33. 

102 Ibid., Art. 40. 

103 iud., Art. 56. 

104 iud., Art. 51. 
i° 5 Ibid., Art. 55. 

106 The requirement is "Subject to the provisions of other international Con- 
ventions" but this limitation seems to require nothing more than adequate re- 
ceipt with compensation made in the future. 

i 07 6 U.S. Treaties 3516, Art. 56 (1955). 

los ibid., Art. 60. 



200 

Protected persons, who are interned, present no special requisition 
problems, although the Convention prohibits their forced labor, 
except for medical personnel in a professional capacity; administra- 
tive and maintenance work in the places of internment, including 
kitchen and domestic tasks; and duties connected with protection 
against aerial bombardment or other war risks. Provision is made 
for payment of wages. 109 If the property of an internee is with- 
held upon his release or repatriation by virtue of laws of the detain- 
ing power, he must receive a detailed receipt. 

The extensive destruction and appropriation of property not 
justified by military necessity and carried out unlawfully and 
wantonly is said to be a grave breach of the Convention. 110 This 
would not, of course, preclude requisitions of property of protected 
persons, even though on a large scale, if done upon regular orders 
and with a provision for immediate or reasonably delayed com- 
pensation. 

Hague Convention V {Respecting the Rights and Duties of 
Neutral Powers and Persons in Case of War on Land) permits 
the necessary requisition of railway material belonging to a neutral 
by a belligerent with a restriction that the material must be sent 
back to the country of origin as soon as possible. 111 Compensation 
must be paid in proportion to the material used and the period of 
usage. 

Difficulty was experienced at the Hague Conference of 1907 in 
formulating this provision. There was considerable opposition at 
the time to any requisitions of neutral property by a belligerent. 
The right was finally recognized but limited to cases of imperative 
necessity. 112 

Major General von Gundell of the German Delegation advocated 
the inclusion of a right of requisition of railway material. He dis- 
tinguished in argument the slight injury which a state would sustain 
by returning neutral vessels from the great injury by dislocation of 
its transportation system which would result from an immediate 
return of railroad equipment. 113 



109 Ibid., Art. 98. The Detaining Power must*open a regular account for every 
internee. Art. 95. Wages for work done are determined on an equitable basis by 
special agreements between internees, the Detaining Power or employers other 
than the Detaining Power. Internees in the categories whose services may be 
requisitioned must be paid "fair wages" by the Detaining Power. 

110 Ibid., Art. 147. 

111 36 Stat. 2310, Art. 19 (1909-1911). 

n2 U.S. Naval War College, International Law Situations, 1926, 66. 
"3 Ibid., 67-68. 



201 

Hague Convention IX (Respecting Bombardment by Naval Forces 
in Time of War) permits bombardment of an undefended town : 

* * * if the local authorities, after a formal summons has been 

made to them, decline to comply with requisitions for provisions 

or supplies necessary for the immediate use of the naval force 

before the place in question. 

The requisitions in such a case must be in proportion to the 
resources of the place, must be demanded in the name of the com- 
mander of the naval force, and must either be paid for or evidenced 
by receipts. 114 There is no authority to bombard for failure to pay 
money contributions. 115 

Both the 1929 Geneva Convention for the Amelioration of the 
Condition of the Wounded and Sick of Armies in the Field 116 and 
the Geneva Convention of 1949 on the same subject, 117 the latter 
Convention superseding the former for the United States, con- 
tained provisions for the temporary requisition of medical and 
sanitary personnel, equipment and buildings. These requisitions are 
limited to cases of urgency and contemplate both limited use of 
the personnel and equipment, and restitution with reasonable prompt- 
ness rather than compensation. These requisitions, however, are of 
privileged persons and property. The Convention cannot be taken 
as establishing for all purposes principles bearing upon the requisi- 
tion of property of nonprivileged character. 

The only provisions in any of the Conventions explicitly applic- 
able to civil wars are included as "common" Article 3 in each of 
the Geneva Conventions of 1949. "Common'' Article 3 establishes 
minimum standards of physical treatment of persons. The Article 
contains nothing concerning requisitions of property. It is stated in 
this Article that parties to the internal conflict should endeavor to 
bring into force by special agreements all or part of the provisions 
of the Conventions. 

The Hague Conventions contain a "general participation" clause. 
The "general participation" clause states, in effect, that the par- 
ticular Hague Convention is inapplicable unless all the belligerents 
are parties to the Convention. 

Unless the combatants agree to apply their terms, the Hague 
Conventions cannot be applied directly to a civil war. Nor can the 



114 36 Stat. 2351, Art. 3 (1909-1911). 

115 Ibid., Art. 4. 

H647 stat. 2074 (1931-1933). 

117 6 U.S. Treaties 3114 (1955). The Geneva Convention of 1929 is still tech- 
nically in force between the United States and those states which have not 
ratified the Geneva Convention of 1949 but were also parties to the earlier 
treaty. 



202 

Geneva Conventions be applied directly except to the extent stated 
in "common" Article 3. 

Applying Principles of International Agreements 
As "International Custom" 

It is possible, however, that these Conventions, taken as a group, 
now express accepted principles of the customary law of war which 
might be applied to a civil disturbance under special circumstances. 

During World War II, for example, Kussia was a party to Hague 
Convention IV. Two of the belligerents, Bulgaria and Italy, were 
not. Russia, on the other hand, had never become a party to the 
Geneva Convention of 1929 concerning treatment of prisoners of 
war. The Nuremberg Tribunal for the Trial of Major War Criminals 
nevertheless held Germany bound in its relations with the Soviet 
Union by a customary law of warfare which these Conventions were 
said to reflect. Thus, with respect to Hague Convention IV, the 
Tribunal ruled : 118 

* * * The rules of land warfare expressed in the Convention 
undoubtedly represented an advance over existing international 
law at the time of their adoption. But the Convention expressly 
stated that it was an attempt 'to revise the general laws and 
customs of war,' which it thus recognized to be existing, but 
by 1939 those rules laid down in the Convention were recognized 
by all civilized nations, and were regarded as being declaratory 
of the laws and customs of war which were referred to in Article 
6(b) of the Charter. 

With respect to the Geneva Convention of 1929 on the treatment 
of prisoners of war, the Tribunal cited with approval a statement by 
Admiral Canaris protesting the departures in treatment of prisoners 
from settled customs dating from the 18th century. 119 In the "High 
Command Case," 12 ° the United States Military Tribunal applied 
this rationale, remarking upon the approval of the Canaris state- 
ment by the International Military Tribunal : 121 

It would appear from the above quotation that the Tribunal 
accepted as international law the statement of Admiral Canaris 
to the effect that the Geneva Convention was not binding 
between Germany and Russia as a contractual agreement but 



118 I International Military Tribunal (Nuremberg) Trial of the Major War 
Criminals, 253 (1947). 

iw Ibid., 232. 

120 United States of America v. Wilhelm von Leeb, et al. (Case No. 12) Nurem- 
berg Military Tribunals, X, XI Trials of War Criminals (1950). 

i2i Ibid., XI, 534. 



203 

that the general principles of international law as outlined in 
this Convention were applicable. In other words, it would appear 
that the IMT in the case above cited followed the same line of 
thought with regard to the Geneva Convention as with respect 
to the Hague Convention to the effect that they were binding 
insofar as they were in substance an expression of international 
law as accepted by the civilized nations of the world, and this 
tribunal adopts that viewpoint. 

The Geneva Conventions of 1949, like the Conventions of 1929 
applied by the Nuremberg Tribunals, contain no "general par- 
ticipation" clause. If one of the parties to a conflict is not also 
a party to the Conventions, the Conventions nevertheless remain 
binding upon the parties to it in their mutual relations. 

The Conventions likewise apply in any armed conflict which 
arises between two or more of the parties, with or without recogni- 
tion of a state of war. 122 The trend in scope of the Conventions has 
been since 1907 towards a progressively broader application of their 
obligations to various stages and conditions of armed conflict. 

The provisions of the Conventions with respect to requisitions 
have, on the other hand, been fairly static. The Conventions of 1907 
marked two major changes in principle from the customary doctrine 
existing at that time. 

These changes were that a requisition must be necessary for the 
needs of the military force or for administration of an occupied 
territory and must be proportioned to the resources of the people 
of the country upon whom it is imposed. In addition to these 
features, which should now be regarded as established in custom, 
requisitions of private property require: (1) Orders in regular 
form by a major commander, to ensure that the requisition is neces- 
sary for a public purpose and to fix responsibility; and either (2) 
payment in cash for the articles or services requisitioned or (3) 
acknowledgement by a receipt with a subsequent payment in cash as 
soon as possible. 123 



122 E.g., 6 U.S. Treaties 3114, Art. 2 (1955). This provision is common to the 
four Geneva Conventions of 1949. 

123 A requisition which is proper under international law when made becomes 
improper if no adequate compensation is tendered within a reasonable time. See 
Goldenberg v. Germany, Annual Digest (1927-28) Case No. 369; Karmutzucas v. 
Germany, Annual Digest (1925-26) Case No. 365. The principle was also applied 
following World War II. See Case of Phillippe Rust, 9 War Crimes Trials, 71 
(1949) ; Secret v. Loizel, Annual Digest (1943-45) Case No. 164. The compensa- 
tion to be paid is not necessarily the market price at the time of requisition but 
a fair price under the circumstances. II Oppenheim, International Law, 412 
(7th Ed., 1952). 



204 

The trend towards expanding the application of the Conventions, 
coupled with consistency throughout all of the Conventions in the 
statements concerning legal conditions for the requisition of private 
property, appears to support an argument that these requisition 
principles are recognized today as part of the customary law of war 
and, under appropriate conditions, might be applied in a civil 
disturbance. 

The aptness of application of the customary doctrine of requisi- 
tions as expressed in the Conventions to a civil disturbance may be 
appreciated when it is recognized that these provisions are no 
longer of major significance for potential application to a general 
military conflict fought with modern weapons and tactics. Both 
requisitions and contributions have been said by publicists to be 
based upon the "eternal" principle that war must support war. 124 
The enduring and pervasive character of this principle is now open 
to question. 

A major destruction of the resources of a country, familiar during 
World War II, and assured in any future major conflict in any 
reasonably predictable form, places an invading military force 
under the necessity of supplying a civilain population rather than 
requisitioning its remaining slender resources. The problems are 
those of employing a civilian population which seeks employment, 
rather than of requisitioning its services; of supplying medical and 
hospital items for civilian use, rather than of seeking them for 
military use; and of providing civilian shelter rather than of 
diverting it for use in quartering troops. The United States, after 
World War II, went to lengths to revive and rehabilitate its former 
enemies to fill a power vacuum. The defeated states were not required 
to pay the cost of the successful military operations. 

Requisitions on any appreciable scale are likely to be made during 
the conduct of actual military operations against an enemy rather 
than during military occupation of hostile territory. Regulating the 
latter regime was of major concern at both the Hague and Geneva 
Conferences. 

During military operations, the trend is likely to be towards 
requisitions of services necessary for area damage control and main- 
tenance of essential public utilities. The officers ordering such requi- 
sitions will probably be small unit commanders. The conditions 
of requisition may be such that receipts or payment will be neglected. 
The services, involving as they will a high degree of hazard, will 
be difficult to value. Food and other articles which are easily con- 
taminated by fission products and difficult to decontaminate will be 



124 II Oppenheim, International Law, 408 (7th Ed., 1952) 



205 

carefully avoided by military forces to reduce the exposure of 
personnel to radiation. The quartering procedures followed during 
former conventional wars will be abandoned to avoid concentra- 
tions of troops and their exposure to attack by ultradecisive weapons. 
The requisitioning provisions of the Hague and Geneva Conventions 
will thus quite probably have limited application in a major war. 

The principles expressed in these Conventions may nevertheless 
be applicable to limited wars in which ultradecisive weapons are 
not used. These wars may be of an international or internal nature. 
Small units, such as guerrilla bands, may be difficult to locate and 
supply. When located, efforts to supply them may disclose their 
positions to the enemy. 

These guerrilla units must then live by requisitioning food, 
medical supplies, shelter and services from the local population. An 
insurgent army, as in Nueva, its supplies curtailed from other 
sources, will depend heavily upon requisitions. A de jure government 
may requisition supplies to deny them to the insurgents or to com- 
pensate for dislocations in its supply system produced by the in- 
surgency. 

The future viability of the Hague and Geneva principles concern- 
ing requisitions will thus depend largely upon their adaptability 
either to limited international wars fought to an appreciable extent 
with small detached units, typically guerrilla warfare, or to in- 
surgencies in which a status of belligerency has not been recognized. 
In hostilities of this nature, the conception that "war must support 
war" still prevails. 

Can the principles of the Conventions concerning requisitions be 
applied as part of the customary law of war to an insurgency, as 
in Nueva? The belligerent status of the insurgents has not been 
recognized by any government. The disturbance has not expanded 
to a point at which a de facto state of belligerency can be said to 
exist. 

Most publicists have stated, or assumed, that the customary laws 
of war are not applied to civil disturbances until the insurgents are 
recognized as belligerents. 125 These publicists, however, have dis- 
cussed in the context of their statements problems which, although 
perplexing, are nevertheless narrow in scope. 

One of the most difficult of these problems has been delineation 
of the circumstances under which a de jure government must treat 
rebels as prisoners of war rather than subjecting them to summary 
criminal processes as traitors. It is apparent that no amount of 



125 E.g., II Oppenheim, International Law, 209 (7th Ed., 1952) ; Department of 
the Army, The Law of Land Warfare FM 27-10 (1956). 



206 

belligerent recognition of the rebels by other states will go far to 
prevent a de jure government, intent on crushing a rebellion by 
terror, from applying the most stringent sanctions to its citizens. 126 
Humane treatment may be granted to the rebels to obtain reciprocal 
treatment of government personnel. But a de jure government will 
seldom encourage a rebellion by expressly granting the rebels 
belligerent recognition. Accordingly, efforts have been made to 
divorce the requirement of humane treatment from belligerent 
recognition, Judge Lauterpacht, for example, having written : 127 
* * * As the law stands at present, a state which denies the 
character and the rights of belligerents to insurgents who have 
risen against it and who are in fact possessed of the attributes 
of belligerency does not act contrary to a clear rule of inter- 
national law. But it does -disregard the principles which under- 
lie the law of war and which are in their essence independent 
of the formal status of the parties to the struggle. 
By contrast, a change in the regime of the high seas from one 
of freedom of navigation to one in which interference with shipping 
is tolerated, is keyed to nonrecognition or recognition of the bel- 
ligerency of the interfering party. This has proven a realistic and 
economical accommodation of the competitive needs of armed con- 
testants with the commercial interests of peaceful "bystander" 
states. 

Belligerent recognition serves, functionally, as notice to the con- 
testant of the "bystander's" claim to neutral privileges and to 
citizens of the "bystander" that its neutrality laws apply. Bel- 
ligerent recognition in this special context supports the element of 
coordinated action among states which is the essence of public order. 
While with respect to the recognizing "bystander" state, both the 
de jure government and the insurgents may establish blockades 
jure belli, enforce contraband lists, and visit, search and capture 
vessels upon the high seas, whether the belligerent recognition is 
expressed or implied, these legal incidents are subordinate in 
importance to the coordination of national and international law 
and related activity which belligerent recognition accomplishes. 

It cannot be assumed, however, that belligerent recognition has the 
same function of coordination in each context. Nor can it be assumed 
that belligerent action upon the high seas, while important, encom- 
passes the total area of conflict within which the laws of war might 
apply. 



126 E.g., Trinquier, Modern Warfare, A French View of Counter-Insurgency 
(1964) passim. 

127 Lauterpacht, Recognition in International Law, 246 (1947). 



207 

With respect to the property rights of its citizens in the territory 
of a state in civil conflict, recognition of a state of belligerency 
by a "bystander" state exonerates the de jure government from the 
somewhat remote potential liability which it might have for damages 
to the property caused by the insurgents. Functionally, belligerent 
recognition in this context is supporting a system of order by a form 
of waiver, eliminating possible future sources of conflict by eliminat- 
ing the potential liability of one possible party. 

It has never been suggested, on the other hand, that the obliga- 
tion of either the de jure government or the insurgents to receipt 
or pay immediately for property requisition depended upon bel- 
ligerent recognition. It has been pointed out in Situation 2 that, 
absent belligerent recognition, "bystander" states have recognized 
rights of the de jure government and insurgents to interfere with 
their commerce within the territorial waters and on land of a state 
embroiled in civil strife. 

The propriety of seizures of property of a character not destined 
for, and usable by, the opposing military force is in doubt when the 
seizure is in territorial w T aters rather than on land. But receipts or 
payments are necessary and the customary laws of warfare require 
humane treatment of crews of the detained vessels. 

A civil war is not always conducted, as were the American and 
Spanish Civil Wars, with an increasing degree of intensity. Usually, 
the strength of the insurgents will advance and recede. The scope 
of their activities will increase and diminish. Their leaders will 
change and their political responsibility will vary. The so-called 
de facto state of belligerency of the insurgents will wax and wane. 
Insurgents who have been extended belligerent recognition by 
another state may be reduced to the status and political responsibility 
of bandits. 

From the point of view of a "bystander" state, with respect to 
requisitions of property of its citizens by either the de jure govern- 
ment or insurgents, it is reasonable to invoke the customary laws of 
war as expressed or influenced by the Hague and Geneva Conven- 
tions. There is no requirement that the "bystander" state, to seek 
these minimum property safeguards, bring into operation its own 
neutrality laws and expose itself to an exercise of belligerent rights 
upon the high seas and to a possible charge of intervention by 
recognizing either the belligerency of the insurgents or a "state" 
of belligerency. 

Application of Principles to Seizures by Nuevan Officials 

The diplomatic practice of the United States recognizes the 
expropriatory power of the de jure government of a state which is in 



208 

fact in physical control of a portion of its territory over all objects, 
movable and immovable, found within that portion, except property 
owned by the United States. 128 For such public property the United 
States may assert a claim of sovereign immunity. 

The expropriation of the vessels and lumber by the de jure 
government of Nueva may be founded upon a general right, such 
as that usually asserted in general nationalizations of property, 
often said to flow "from the sovereignty of states over their internal 
affairs.*' 129 As stated by Secretary of State Hull to the Mexican 
Ambassador in 1939 : 13 ° 

My Government has frequently asserted the right of all 

countries freely to determine their own social, agrarian and 

industrial problems. This right includes the sovereign right 

of any government to expropriate private property within its 

borders in furtherance of public purposes. 

The expropriation also may be founded upon a more particularized 
power to seize property for public use in an emergency. This power 
also has been recognized repeatedly by the United States. 131 

With respect to the seizure of the three merchant vessels, Harp, 
West Wind and Cypress, it may be arguable that they are tempor- 
arily within Nuevan territorial waters and have insufficient con- 
nection with the territory, and thus cannot be taken. 132 This posi- 
tion had some support in the law of "angary." It appears no longer 
to be the practice under the modern law of requisitions applied in 
World Wars I and II. The prevailing present opinion is that a 
vessel may be requisitioned in an emergency if it enters port 
voluntarily. 133 



128 See Friedman, Expropriation in International Law, 134-135 (1953). 

129 See White, 'Nationalization of Foreign Property, 4 (1961). 
!3°32 A.J.I.L. (Supp., 1938), 181, 182. Cited in White, supra. 
i3i in Hyde, International Law, 1758-1772 (1947). 

132 Friedman, for example, writes : 

By customary international law the right of angary is excluded in certain 
cases which clearly show that, being a variant of expropriation, it may only 
be exercised in respect of property having a connection with the particular 
territory. It has no application to ships in transit in foreign ports not to 
ships under repair, but it does apply to ships which by their prolonged vol- 
untary internment have finally become assimilated to the stable elements 
in the particular territory which are subject to the State's territorial 
sovereignty. 
Friedman, Expropriation in International Law, 166 (1953). 

133 The Harvard Draft Convention on the Right and Duties of Neutral States 
in Naval and Aerial War accepts the element of "volitional" entry although it 
is pointed out that agreement upon the point is not general. See 33 A.J.I.L. 
(Supp. 2, 1939), 361, 368. See Castren, The Present Law of War and Neutrality, 
511 (1954). 



209 

British courts have permitted requisitions of vessels and property 
seized on the high seas and brought in for adjudication. 134 The 
Court of King's Bench once permitted requisition of a neutral cargo 
brought into a British port by a British vessel against the will of the 
owner of the property. 135 

Injecting an element of volitional entry into the conditions for 
requisition seems intended to preclude the practice of requisitioning 
vessels brought into port ostensibly for a search when a search can 
be conducted thoroughly and safely on the high seas. As pointed out, 
there is no objection to requisitioning a vessel or cargo in the 
custody of a prize court when there is a real issue to be tried and 
the procedure is not a ruse to facilitate the requisition. 136 

Volition cannot, on the other hand, be relied upon as the basis for 
an effective argument to oppose requisitions. A few publisists take 
the position that a vessel which enters a port in distress cannot be 
requisitioned. 137 However, the emergency of the requisitioning state 
might clearly outweigh the privilege of the victim driven in by 
force majeure. There is scant authority upon which an exception for 
distress may be based. 138 It may be possible to argue that only prop- 
erty voluntarily submitted to the jurisdiction of the state can be 
requisitioned. The argument might be extended by claiming immu- 



134 The leading case is The Zamora /1916/ 2 A.C. 77 in which a Swedish vessel 
was brought in for search and then seized and subjected to adjudication on the 
ground that it carried contraband copper destined for the enemy. While the case 
was before the prize court, the Crown attempted to requisition the copper but 
this was not permitted on the theory that there "was no real question to be 
tried," so it would be improper not to order an immediate release. In addition to 
this feature, which frustrated the requisition, the Privy Council stated that the 
requisition of the vessel or goods must be needed urgently for defense or other 
national security matters and the matter was, in any event, one for the courts 
and not the executive to determine. 

135 Commercial and Estates Company of Egypt v. Board of Trade /1925/ 
1 K.B. 271. 

136 See The Zamora, Fn. 134, supra. 

137 E.g., Friedman, Expropriation in International Law, 188-189 (1953). 

138 In the Kate A. Hoff Case (United States v. Mexico) Opinions of The 
Commissioners, 174 (1929), Rebecca, an American ship, entered Tampico in dis- 
tress. Her master was arrested for bringing goods into a Mexican port without 
proper papers and was assessed triple damages against the merchandise on the 
vessel. When he failed to pay, Rebecca and its cargo were sold under a court 
order. 

The Commission made an award in favor of the owners. Although the case 
can be explained simply upon the principle that a vessel in distress is exempt 
from the local customs laws, it may be argued that the case stands for the 
broader proposition that a vessel in distress cannot be expropriated for any 
reason. 



210 

nity when the volitional entry was prior to the emergency or in igno- 
rance of an existing emergency. 

These arguments are tenuous and are significantly weakened by 
the practice of requisitioning large numbers of idle vessels by the 
United States, Britain and Italy during World War I and by the 
United States and Britain in World War II. 139 It is not likely these 
arguments will bear close judicial scrutiny or will appeal to an army 
officer confronted by an insurrection, such as the one who has issued 
the requisition order in Nueva. 

At least one writer takes the position that the right of "angary" 
or the right of requisition can be exercised upon the high seas. 140 
The basis for this position is obscure. The few instances in which 
such requisitions have occurred have given rise to no suggestion 
that such a principle has been accepted by states. The statement 



139 The United States, in 1918, requisitioned 87 Dutch vessels in American 
ports and in 1917 requisitioned Norwegian ships building in American yards. 
See Fn. 86, supra. England, France and Italy requisitioned Swedish and Dutch 
vessels in 1918 under similar circumstances. 

Four warships under construction in British shipyards for Turkey were 
requisitioned by England while Turkey was neutral in 1914. The United States, 
before its entrance into World War II, requisitioned idle vessels in American 
waters. This was also done by other American republics. 
50 U.S. Code 196 currently provides : 

During any period in which vessels may be requisitioned under section 
1242 of Title 46, the President is authorized and empowered through the 
Secretary of Commerce to purchase, or to requisition, or for any part of 
such period to charter or requisition the use of, or to take over the title to 
or possession of, for such use or disposition as he shall direct, any merchant 
vessel not owned by citizens of the United States which is lying idle in 
waters within the jurisdiction of the United States, including the Canal 
Zone, and which the President finds to be necessary to the National Defense. 
Just compensation shall be determined and made to the owner or owners 
of any such vessel in accordance with the applicable provisions of § 1242 of 
Title 46. * * * 

Section 1242 of Title 46 of the United States Code, which applies to vessels 
owned by citizens, or under construction in the United States, and establishes 
the scheme of compensation, establishes as a condition of time : 
whenever the President shall proclaim that the security of the national 
defense makes it advisable or during any national emergency declared by 
proclamation of the President. 

**<> II Oppenheim, International Law, 761, 765 (7th Ed., 1952). Fn. 3 at p. 761 
points out that the almost unanimous opinion of writers is to the contrary. 

Only two instances of attempted requisitions have been reported. Helicon, a 
Norwegian steamer, was halted in 1914 and coal requisitioned by a German 
cruiser. Petrolite, an American steamer, had food requisitioned by an Austrian 
submarine in 1915. In neither case were the requisitions claimed or admitted 
to be consistent with international law. 



211 

may be based upon the British practice of requisitioning vessels 
and cargo during prize adjudications or when brought in for 
search. 141 

Most publicists assume merchant vessels in innocent passage 
through territorial waters may be requisitioned or subjected to the 
right of "angary." This position also has little support in practice. 142 

If the power of a state to requisition property of aliens is subject 
to any appreciable confines, some direct contact previously existing 
between the state and the property taken must be required. It is 
the essence of innocent passage that this contact, of an offensive 
nature at any rate, is lacking. 

The current absence of general agreement concerning the extent 
of territorial waters, coupled with claims of contiguous zones, 
sometimes of an extravagant nature, may erode the doctrine that 
property may not be requisitioned on the high seas. Assuming 
requisitions may be made during emergencies, as determined by the 
requisitioning state, the absence of a generally accepted test for 
territorial seas may ultimately impose a heavy burden upon sea 
commerce. 

Suggested Solution : Situation 4 

Upon the assumption Harp, West Wind and Cypress entered the 
harbor of Exaltation voluntarily, not having been forced in by 
Cortez or Salvaje naval units, the vessels, by the present United 
States practice and accepted international legal principles, are sub- 
ject to requisition by the Cortez government. There is no requirement 
that the various conditions of the old law of "angary" be satisfied. 

There must be an urgent requirement for use of the vessels in the 
emergency. This, in accordance with the United States position, is 
determined finally by the requisitioning government. The vessels 
must be within the jurisdiction of Nueva, which they clearly are. 
There must be compensation. The services of the officers and crews 
of these vessels cannot be requisitioned. 

The principles applicable to requisition of the vessels are applic- 
able to the lumber. The contact or connection between the lumber 



141 Article 29 of the Declaration of London of 1909 suggests goods serving 
exclusively to aid the sick and wounded may be requisitioned on the high seas 
although not treated as contraband of war. The Declaration of London is not 
a treaty. The inference which may be drawn from Article 29 appears incom- 
patible with the Hague and Geneva Conventions on the point. A detailed com- 
ment on the Oppenheim position appears in Colombos, The International Law of 
the Sea, 508-510 (4th Ed., 1959). 

142 E.g., Castren, Present Law of War and Neutrality, 511 (1954). 



212 

and Nueva is clear. Fewer arguments can be developed to oppose 
the action of the army commander. 

Nationals of Nueva may be required to continue their work in the 
yards. But the labor of United States citizens may be compelled 
only to the extent necessary to protect the property from loss or 
injury during an orderly turnover and to secure orderly accounts 
and inventories upon which a valuation of the property may be 
based. 

The naval force will not, absent further orders, intervene to pre- 
vent the requisitions, but will report these acts by the Cortez Govern- 
ment and will take measures to insure that the requirements of the 
customary laws of warfare are met in establishing the responsibility 
of the Cortez Government for the requisitions and the value of the 
property taken. 

These requirements are that the local army commander issue 
written orders in regular form directing the seizures and that he 
furnish to the custodians of the property detailed written receipts 
indicating the property requisitioned and the use for which it was 
requisitioned. Compensation or an agreement for compensation will 
not be required in advance, although a fair compensation must be 
paid within a reasonable time. The United States will take action 
other than military to insure that compensation is paid. Routine 
procedures for this purpose are probably established in the Treaty 
of Friendship and Commerce between Nueva and the United States 
and adequate sanctions to secure payment no doubt exist in foreign 
aid agreements to which the United States and Nueva are parties. 143 

The case of requisition in regular form by a de jure or de facto 
government of a state is distinguishable from a case of a threat to 
property or lives when local law enforcement has broken down 
and the government would have doubtful responsibility for damage 
which United States citizens might sustain. 

In the latter case international governmental procedures cannot 
be expected to operate with sufficient speed to prevent or minimize 
damage. This being the case, the individual state can act pending 



143 See Fn. 89, supra. The Foreign Assistance Act of 1961 provides, for 
example, 

No assistance shall be provided under this Act to the government of any 
country which is indebted to any United States citizen for goods or services 
furnished, where such citizen has exhausted available legal remedies and 
the debt is not denied or contested by such government. 

Public Law 87-195, 87th Cong., 4 September 1961, section 620(c). The present 
trend in foreign aid bills is towards prompt denials of aid to countries which 
expropriate the property of "United States citizens without adequate compensa- 
tion. See Heffernan, New York Times, 10 June 1962, p. 1. 



213 

action by an appropriate international governmental organization, 
although action by such an organization should not be hindered or 
impeded. 

In the former case the responsibility of the requisitioning govern- 
ment is clearly established in international law as are procedures by 
which compensation may be obtained. There is thus no need for 
action other than to insure that the proper foundation for a claim 
is laid. 144 



144 Suggested references which develop in greater detail the problems raised 
in Situation 4 are Stone, Legal Controls of International Conflict, 436-441 (2d 
Ed., 1959) ; II Oppenheim, International Law, 759-766 (7th Ed., 1952) ; III 
Hyde, International Law, 1757-1772 (1947) ; Castren, Present Law of War and 
Neutrality, 509-513 (1954) ; Colombos, International Law of the Sea, 505-513 
(4th Ed., 1959) ; McDougal and Feliciano, Law and Minimum World Public 
Order, 476 (Fn. 223), 818-824 (1961) ; Bullock, "Angary" 3 Brit. Y.B. Int. L., 
99 (1922-23) ; Feilchenfeld, The International Economic Law of Belligerent 
Occupation, 32-46, 50-51 (1942) ; Lauterpacht, "Angary and Requisition of 
Neutral Property," 27 Brit. Y.B. Int. L., 455 (1950). A thoughtful survey of 
the problems of state responsibility involved and a draft convention on the 
subject appears in Sohn and Baxter, "Responsibility of States for Injuries to 
the Economic Interests of Aliens," 55 A.J.I. L., 545 (1961). 



CHAPTER IV 

ECONOMIC WARFARE AS A PRIMARY POLICY DEVICE 

INTRODUCTION 

This Chapter illustrates economic warfare used "offensively" as 
a primary policy instrument. Major reliance is placed upon eco- 
nomic warfare in Situations 5 and 6 to attain policy goals. The 
offensive role of economic warfare in Situation 5 is to interrupt 
supply by one of our allies of insurgents in another state. The 
employment of intense forms of violence for this purpose is inad- 
missible because a basis for friendship of the target of economic 
action must be retained. 

The offensive role of economic warfare in Situation 6 is to counter 
and upset a planned attack upon the United States with biological 
weapons. In Situation 6 naval and other military force is deployed 
to "quarantine" or "interdict" biological munitions and the means 
for their delivery. 

Situation 5 concentrates upon basic elements of the "economic 
sortie." Difficulties in manipulating foreign aid as an economic 
warfare measure are illustrated. National and international com- 
modity controls are discussed and suggestions offered how economic 
sorties can be developed within the legal structure established for 
commodity trade and control. 

Situation 6 illustrates "economic sortie" techniques using naval 
force in offensive economic warfare. Self-Defense and Collective 
Self-Defense arguments under Article 51 are examined and a scheme 
suggested for a standard of permissive coercive action in view of 
Articles 2(4) and 51 of the United Nations Charter. 

The reader will find it helpful to review the discussion of "inter- 
vention" in Situation 3, Chapter III. The analysis of permissive 
coercion suggested is framed in the broader standard of permissive 
intervention developed in Chapter III. 

Situation 6 contains a discussion of legal problems in the Cuban 
Quarantine of 1962. Selected comments upon legal features of the 
Quarantine are analyzed and discussed. 

215 



216 

A. PLANNING THE ECONOMIC SORTIE: CONSIDERATIONS 
OF LEGAL STRATEGY 

Situation 5 

Twelve hours after delivery of the Nuevan ultimatum to the 
Antiokan foreign secretary, Nuevan intelligence officers report with- 
drawal of the Antiokan marines from the southwest coast of Nueva. 
The marines have been replaced by PDS units. These units are now 
removing supplies from the beaches and have landed other supplies 
from unidentified surface vessels, submarines or aircraft. 

Supplies identified as Antiokan are food, medical supplies and 
equipment, and small arms ammunition. Containers of small arms, 
antitank and antipersonnel mines, and light artillery ammunition 
have been observed. There are a number of uncrated light antiair- 
craft missiles. These missiles bear ordnance markings of the Peoples 
Republic of Scythia. No Scythian surface vessels, submarines or 
aircraft in the area have been identified. 

Our Minister to Nueva, now at his post, has persuaded Cortez to 
request a meeting of the Organ of Consultation (Council of Foreign 
Ministers) of the Organization of American States. Both Nueva and 
Antioka are members of the Organization. 

Cortez has declared, however, that Antioka must cease supplying 
Salvaje or he will stop the supplies by force. He is gratified that 
Antiokan marines have been withdrawn, is prepared to accept this 
act as a partial response to his ultimatum, and will refrain from 
military action for a short time to determine whether Antioka will 
cease its "intervention." 

The United States Minister reports Cortez is under heavy pres- 
sure by chauvinistic members of his cabinet to commence hostilities 
against Antioka immediately. He believes Cortez is anxious to avoid 
this diversion of his military strength. Both Cortez and the United 
States Minister are alarmed by reports that persons wearing the 
PDS armband but speaking Scythian are taking an active part in 
arming and training PDS personnel in the Luna Mountains. 

Our Minister has recommended to the Department of State that 
action be taken to stop the flow of supplies from Antioka to Salvaje 
pending consideration of the Nuevan complaint by the Organ of 
Consultation of the OAS. While he acknowledges this may increase 
reliance by Salvaje on Scythia, he believes it important to bring 
Scythian support of Salvaje into the open as early as possible and 
to force Salvaje to requisition food from farmers in the Luna 
Mountain area. Since food supplies are short because of an extreme 
drought, he thinks this will alienate the farmers from Salvaje and 
favor the Cortez government. 



217 

After receiving this recommendation from our Minister to Nueva, 
the Department of State has instructed our Minister to Antioka to 
discuss the Nuevan charge with Marshal Gondomar, President of 
the Republic. Gondomar states if aid is being sent to Salvaje, this 
aid supports the Monroe Doctrine since it encourages Salvaje not 
to rely on aid from outside the Hemisphere. 

In any event, the Marshal states, any aid Salvaje receives from 
Antioka comes from private sources. He cannot interfere with these 
because the Antiokan constitution, "one of the most liberal in the 
world" provides for absolute freedom in domestic and foreign trade. 

Our Antiokan Minister reports most of the supplies to Salvaje are 
furnished by REVARMCO, an Antiokan corporation. Marshal 
Gondomar and his two sons own 75% of the common stock. The 
supplies are purchased by REYARMCO from Antiokan arsenals 
and depots on credit. They are then sold to Salvaje for gold. 

The Minister believes Gondomar can quickly bring this trade to 
an end if he desires. Gondomar is regarded as friendly to the United 
States and has usually supported the United States in debates in 
the OAS. 

You are commander of the United States Naval Base at Coloso, 
Antioka. The United States Minister to Antioka is now meeting with 
you and the heads of the Army, Navy and Air Force assistance 
missions to Antioka. The Minister wishes to analyze the situation 
and obtain your observations with a view to further talks with 
Marshal Gondomar and his report to the State Department. 

You and the other consultants are aware that under the Inter- 
national Peace and Security Act of 1961 x the United States ex- 
pended $10,000,000 in Antioka during the past fiscal year. It will 
expend an equal amount during the current fiscal year. These 
amounts include the cost of major items of military equipment, such 
as tanks and antiaircraft guns, as well as the cost of spare parts, 
maintenance and training of personnel. 

A loan of $12,000,000 has been made from the Development Loan 
Fund 2 to assist in the resettlement of workers, presently employed 
in the tin mining and smelting industry, into agriculture and 
various light industries. No development grants have been made for 
the current fiscal year, but a grant is under consideration for agri- 
cultural training in the public schools. 

Tin concentrates and refined tin metal have been the major 
Antiokan exports since colonial days. During the past ten years, the 



175 Stat. 434 (1961). 

2 Act for International Development of 1961 section 201, 75 Stat. 424, 426 
(1961). 



218 

United States has purchased approximately 60% of the total 
Antiokan production of tin concentrates per annum. 

About 40% of this total production has been purchased in dollars. 
The remaining 20% has been obtained by barter pursuant to the 
Commodity Credit Corporation Charter 3 and the Agricultural 
Trade and Assistance Act of 1954 as amended. 4 

Bolivia is the only other source of United States tin supply in 
the Western Hemisphere. The United States domestic production of 
tin concentrates is negligible; and tin is a strategic metal for which 
there is no adequate substitute in the construction of heavy-duty 
bearings. 

The United States National or "strategic" stockpile now contains 
341,000 long tons of tin ingot. Eight thousand long tons are in the 
Commodity Credit Corporation "Pipeline" stockpile. These amounts 
are 164,000 long tons in excess of projected strategic needs of the 
United States. The Congress has therefore authorized disposition 
of 50,000 long tons of tin ingot from the National stockpile. 

None of this tin has been sold as of the time of the conference 
with the Minister. However, the projected sale has generated much 
publicity and has caused domestic and international concern among 
those interested in the tin market. The President of the United 
States has assured the President of Bolivia that tin dispositions 
authorized by Congress will be made in a manner which will not 
injure the Bolivian economy. 5 Similar assurances have not been 
made to Marshal Gondomar. 

Tin mining in Antioka is on a high-cost basis. The mines have 
not been mechanized appreciably. The three mining corporations, 
controlling %oths of the Antiokan tin production, are controlled by 
Marshal Gondomar and his two sons through majority stock owner- 
ship. 

Antioka has purchased most of its wheat and wheat flour from 
the United States and has bartered wheat for tin with the Com- 
modity Credit Corporation. During the past year the United States 
exported to Antioka 900,000 tons of wheat out of a total export of 
12,066,000 tons. Antioka also looks to the United States for most 
of its hard goods and textiles. Trade in these items amounted to 
about $15,000,000 during the past year. 



3 63 Stat. 154 (1949) section 2 amending section 4(h) of the Commodity 
Credit Corporation Charter Act. The original charter act contained no reference 
to strategic and critical materials. 62 Stat. 1070 (1948). 

4 68 Stat. 494 (1954) section 303; 72 Stat. 1791 (1958) section 6. 

5 45 Department of State Bulletin, 772 (1961). 



219 

Antioka is a party to the International Tin Agreement of I960. 6 
The United States is not a party. Both the United States and 
Antioka are parties to the International Wheat Agreement of 1962. 7 
The United States, Antioka and Nueva are members of the Orga- 
nization of American States and are parties to the various treaties 
upon which this Organization is based. All are also parties to GATT 
and members of the United Nations Organization. 

Our Minister to Antioka tells you he believes the National Security 
Council may recommend to the President economic action to secure 
cooperation by Marshal Gondomar in ending Antiokan aid to 
Salvaje. Due to your extensive service in the area and familiarity 
with Antiokan politics and economic affairs, the Minister solicits 
your recommendations concerning possible courses of action by the 
United States to bring to an end Antiokan intervention in Nuevan 
internal affairs. The Minister is especially interested in economic 
action, although other types of action will be considered during 
your conference. What course or courses of economic action will you 
recommend ? 

Discussion : Situation 5 

1. Tentative Analysis of Facts and Possible Techniques 

a. INTELLIGENCE BARRIER 

The "intelligence barrier" is the major obstacle to be sur- 
mounted before an adequate plan of economic action can be formu- 
lated. The end to be sought is amply clear. The United States 
desires Antioka to police the commercial transactions in which persons 
within its territory play a part to insure trade with Salvaje ceases. 
The end desired is a condition of "no contact." This requires posi- 
tive action by Antiokan authorities. The overall strategy of the 
United States resembles a reconnaissance in force directed against 
one enemy area to induce revelation of the enemy strength in 
another area not under attack. 

An effort is to be made to preserve peace between Antioka and 
Nueva pending consideration of the Nuevan complaint by the Organ 
of Consultation of the Organization of American States. By the 
time of this consideration, it is also expected the magnitude of 
Scythian aid to Salvaje will be revealed. 

None of these things can be accomplished with the speed and 



6 See United States Tin Conference, 1960, Summary of Proceedings, E/CONF. 
32/5, p. 25 et seq. 

7 77 AS 5115 (1962). 



220 

finesse required to avoid a major disturbance of relations between 
Antioka and the United States unless United States policy makers 
know precisely: (1) who can make the decisions in Antioka re- 
quired to produce and sustain the desired condition of "no contact" 
with Salvaje; and (2) the values to which these decision makers 
are likely to respond. 

b. SELECTING THE WEALTH WEAPON 

Once these facts are known, and our intelligence at this stage 
indicates Marshal Gondomar as the official who can make the basic 
"guideline" or "directory" decision to interrupt the contact with 
Salvaje through his control over his sons and REVARMCO, we 
will probably employ the technique described earlier in this book as 
an "economic sortie." 

Although we are relatively sure economic warfare by "protracted 
harassment" will not be attempted, it is possible a wealth weapon 
will not be used. There is evidence Gondomar responds significantly 
to manipulations of the wealth value (he likes money) ; but we 
cannot be certain upon the information we now have about the form 
this response is likely to take. 

Will he resist or will he accept our demand? This we cannot 
determine with any acceptable accuracy until we know more about 
Marshal Gondomar — his history, his current control over his political 
following, the other values at stake as Marshall Gondomar probably 
views them. 

Before, during and after our economic sortie, we must depend 
upon a constant and accurate flow of intelligence. Without this flow 
and a reasonable expectation of its continuance, a wealth weapon 
should not be used because of the chance of catastrophic misdirec- 
tion. 

Assuming we can rely upon the facts we have — and obtain addi- 
tional facts — our problem is to induce in Marshal Gondomar 
psychical disequilibrium or "a sense of being trapped." He must 
feel he has no alternative but to accept our demand. 

This we will do by bringing clearly before the Marshal the decision 
we desire and indicating the probable points of our operations 
against his economic position. We will then proceed rapidly in our 
operations against the point at which he apprehends major injury 
and feels least able to defend. 

It is not what he can do, but what he thinks he can do that counts 
in economic warfare by economic sortie. We must thus take full 
advantage of any existing apprehensions of detriment with which 



221 

the Marshal is troubled. These apprehensions should indicate the 
most remunerative points of attack. 

It is not the shock of the unexpected which produces disequilib- 
rium, as in applications of military force, but the rapid develop- 
ment of an anticipated event which enhances the intuitive pessimism 
of the individual concerned. The point demanded is conceded by the 
target upon the assumption that by doing this he can stabilize his 
position. The "intermediate" object in both economic and military 
warfare is a "psychological condition" of a critical decision maker. 
The ultimate object is acceptance of the victor's demand. 

Four areas of possible economic action appear in the facts before 
the Conference: 

(1) The military and general economic aid program is sub- 
stantial. A withdrawal, increase or redirection of this aid may be 
possible and would be adaptable to the "economic sortie." 

(2) Operations might be conducted against the Antiokan tin 
industry in which Marshal Gondomar has a direct and personal 
interest. 

(3) Antioka has been relying upon wheat obtained by purchase 
and barter from the United States. Perhaps this supply could be cut 
off if other sources could be blocked. 

(4) There is substantial trade in hard goods and textiles that may 
be interrupted or increased. 

In addition to the possibilities for economic warfare mentioned 
in the facts there is an indefinite range of other possibilities. These 
might include interference with loans sought by Antioka; action 
against Antiokan assets in the United States; or a naval surface, 
subsurface and air blockade of Antioka or Nueva. With modifications 
in technique and an adequate flow of information, any of these 
devices can be shaped to an "economic sortie." 

There are two criteria which an acceptable economic weapon 
must satisfy: (1) The weapon must be supportable by other tech- 
niques ranging from persuasive diplomatic devices to physical force 
(Sustentive Range). (2) Collateral repercussions through use of 
the wealth weapon must be suppressible (Ambit of Arrest). These 
criteria, in many instances, overlap. Both are aspects of the major 
desideratum of economy of force. 

c. SUSTENTIVE RANGE— AMBIT OF ARREST 

A wealth weapon, used as a primary policy device in eco- 
nomic warfare, is not an exclusive policy device. Once a basic "guide- 
line" or "directory" decision is obtained by pressure upon Gondomar, 



222 

this decision becomes meaningful only when supported by "ex- 
ecutorial" decisions for the period desired. 8 In effect, the decision 
maker must be locked upon his course. Supporting the decision 
maker in obtaining the required executorial decisions is a vital part 
of this continuing direction. 

The policy devices to secure this continuing direction can be 
tentatively projected at the time the primary wealth weapon is 
selected. When conditions produced by the use of the wealth weapon 
are analyzed, further action by the use of wealth or other weapons 
can then be determined precisely. 

But care must be taken that the wealth weapon selected for 
initial use does not preclude supporting action to obtain the 
requisite executorial decisions or further guideline decisions. For 
example, if wealth pressure upon Gondomar results in resistance 
to him by his own party or a major political group within the 
country, he may be forced into a position in which he cannot call 
upon the United States for help without seriously disturbing his 
domestic political support. 

Marshall Mission to China: 
/Sustentive Range of Economic Policy 

A difficulty of this kind arose during the Marshall Mission to 
China in 1946. Although extensive American aid was necessary in 
China to rebuild its economy, and for this reason could not be 
delayed indefinitely, 9 both President Truman and General Marshall 
held out economic assistance to the Generalissimo as an inducement 
both to reforms within the Kuomintang and to cooperation by the 
Nationalists in a viable truce with the Chinese Communists. 

General Marshall considered no stable Nationalist Government 
possible without substantial popular support. This support he 
thought might be developed most rapidly by reforms within the 
Kuomintang. The General's instructions authorized him to state 
that a China disunited and torn by civil strife was not a proper 
place for American economic assistance or military aid. 10 

Extensive aid was given the Nationalist Government under Lend- 
Lease and commitments were honored to transport Nationalist troops 
by air following the Japanese surrender. UNKBA, to which the 



8 "Executorial" is used in the sense of any decision required to execute a 
policy and therefore described an area broader than that of the "adminis- 
trative" decision, including judicial decisions as well as decisions in informal 
groups affected by the basic decision. 

9 See 15 Department of State Bulletin, 34 (1946). 

10 United States Relations with China, 132 (Department of State Publication 
3573) (1949). 



223 

United States was the major contributor, gave substantial aid to 
the Chinese in 1945 and 1946. But General Marshall opposed credits 
by the Export-Import Bank. He did not recommend these until, 
by early 1946, the outlook for a peaceful settlement of the Nation- 
alist-Communist conflict appeared promising. 11 

The Export-Import Bank ultimately granted $82,800,000 in credits 
to the Nationalists. Upon the further recommendation of General 
Marshall, the Bank earmarked $500,000,000 of its funds for China, 
although implementing agreements were never made. 

In the Lend-Lease Pipeline Agreement, the United States per- 
mitted delivery to the Nationalist Government on long-term credits 
of civilian-type equipment and supplies contracted under the Lend- 
Lease program but undelivered on V-J Day. Fifty-one million 
seven hundred thousand dollars in equipment and supplies were 
covered. There was also minor technical collaboration in agriculture 
and forestry. 

An aid program of even this limited scope could be played upon 
both by Communists and Kuomintang extremists to obstruct the 
efforts of General Marshall. Both sides could cultivate the xenophobic 
and antiwestern bias of large segments of the Chinese to block 
both reforms in the Kuomintang and reciprocal concessions by 
Nationalists and Communists to implement the truce. As stated 
by the Department of State : 12 

The Chinese Communists professed to regard measures of 
aid to China and official statements in Washington as proving 
their contention that American economic and military support 
to the Chinese Government would continue to be given ir- 
respective of whether the National Government offered the 
Communists a fair and reasonable basis for settlement of 
military and political differences. The Communists maintained 
that new legislation intended to aid China, which was then 
under consideration by the United States Congress, was rein- 
forcing the National Government's tendency to deal with the 
Communists by force and was thus contributing to all-out civil 
war. * * * (The legislation concerned a military advisory group 
to act in accordance with the military reorganization agree- 
ment of 25 February 1946) * * * 

At the same time some reactionary Kuomintang elements in 
inner government circles were utilizing American measures as 
a basis for pressing the Generalissimo to push forward with a 
plan of extermination against the Communists. Yet these and 



11 ibid., 226. 

12 IMd., 170-171. 



224 

other Kuomintang extremists appeared to be joining in anti- 
American agitation on the grounds that American economic 
pressure was causing American imports to displace Chinese 
products, bankrupt Chinese industrialists and prevent Chinese 
recovery. 

These Kuomintang groups were also antagonistic to the 
restraint exercised by General Marshall and his assistants on the 
National Government with regard to an anti-Communist mili- 
tary campaign and were even using the Communsit line against 
American intervention in pursuance of their aim to free the 
National Government from any American impediment to drastic 
anti-Communist action. The agitation and propaganda result- 
ing from the activity of the different factions was being mani- 
fested in mass demonstrations, press campaigns and mob 
actions. * * * 

On July 7 the Chinese Communist Party issued a manifesto 
containing a bitter attack on American policy toward China 
and a protest against what the Communist termed American 
military and financial aid to the National Government, which 
encouraged the civil-war policy of the Kuomintang. General 
Marshall had previously refrained from comment on such 
propaganda attacks, but the coincidence of events led him to 
inform General Chou En-lai of the serious blow to the negotia- 
tions such propaganda attacks represented, paralleling as they 
did similar propaganda releases from Moscow, and of the 
impossibility of his serving any useful purpose in mediation and 
in the termination of hostilities while such attacks con- 
tinued. * * * 

As General Marshall, in this hostile environment, attempted to 
hold together his disintegrating truce arrangement, the Communists 
meanwhile assuming a more aggressive posture by attacks upon 
American military personnel, his position was seriously jeopardized 
by the Sino-U.S. Surplus Property Agreement of 30 August 1946. 

The Surplus Property Agreement was concluded in Shanghai 
between Mr. T. V. Soong, President of the Executive Yuan and 
Mr. Thomas B. McCabe, Special Assistant to the Secretary of State 
and Foreign Liquidation Commissioner. The United States agreed 
to sell to the Nationalists for $205,000,000 small naval craft; com- 
munications, construction, electrical, medical and chemical equip- 
ment and supplies; shop and industrial machinery; vehicles of all 
types; and air force items. The property had a procurement value 



225 

of $900,000,000 and was said to cover only items with a civilian 
end-use potential. 13 

Against the consideration of $205,000,000 was set off $150,000,000 
due by the United States to China for supplies furnished United 
States forces during World War II. The remaining $55,000,000 was 
to be paid in Chinese currency on a long-term basis. Twenty million 
dollars was to be used by the United States in cultural and educa- 
tional activities in China. The balance of $35,000,000 was to be used 
for acquisition of real property and other United States expenses in 
China. The United States also established a fund of $30,000,000 
to be used for shipping the surplus and technical services arising 
out of the transfer. 

It is improbable that the Surplus Property Agreement was 
intended as an "economic sortie" — unless this was the Nationalist 
view of the matter. The surplus was located in India, China and 
upon numerous Pacific Islands where both storage facilities and 
adequate maintenance crews were lacking. Unless the surplus could 
be utilized promptly, it would be destroyed by the tropical climate 
and exposure. 

A feeble effort appears to have been made to turn this exigency 
to diplomatic advantage. President Truman emphasized in an 
exchange of letters with the Generalissimo between August 10th 
and August 31st the necessity that Chinese internal problems be 
settled peacefully before extensive American aid could commence. 14 
Whether the exchange was initiated to coincide with the Agree- 
ment, or the Agreement signed to coincide with the exchange, cannot 
be determined from published materials. Although the Chinese 
were given 22 months within which to remove the surplus, there 
would be a sufficient logistical lag to prevent use of the property in 
any immediate assault against the Communists. At the same time 
the transfer would indicate to the Generalissimo the quality and 
quantity of the remaining "carrots" in the American bin. This was 
"weak fare" for "warfare"; but the Agreement, "sortie" or not, 
both blocked the truce negotiations and tended to neutralize the 
political impact of all American aid extended thereafter to the 
Nationalists until they were driven from the mainland in 1949. 

As "economic warfare" the Agreement lacked sustentive range 
because it provided apparently definitive proof of a Communist 



13 The writer has not had access to a verbatim copy of the Agreement. A 
fairly detailed summary of the provisions appears in 15 Department of State 
Bulletin, 548 (1946). 

14 United States Relations With China, 652-654 (Department of State Publi- 
cation 3573) (1949). 



226 

charge, difficult to refute in the minds of Chinese — the minds that 
counted, that the Generalissimo was entirely dependent upon Amer- 
ican support and could never be more than a "puppet of American 
imperialists/' The Agreement also provided an apparent founda- 
tion for the charge that the United States actually had no interest 
in a viable truce but was buying time to build up Nationalist 
strength. 

Typical of this propaganda, as it reached a fever pitch, was 
the passage in a speech by Chou En-lai, broadcast from Yenan in 
January 1947 : 15 

The people of the whole nation were welcoming President 
Truman's statement on China and General Marshall's mediation 
efforts in China a year ago, but not before long the true nature 
of the China policy of the American imperialists was exposed, 
and the high treason diplomacy of Chiang Kai-shek's regime 
was also fully unmasked. 

Since then, from tens of thousands of students to the broad 
masses of residents in big cities all over China have been shout- 
ing these slogans: 'U.S. Army quit China,' 'oppose American 
intervention in China's internal affairs,' 'oppose Quisling style 
diplomacy,' 'oppose the Sino-American trade treaty'; and the 
like * * * 

And the Central Committee of the Chinese Communist Party 
stated in February 1947 : 16 

* * * Since January 10, 1946, however, Chinese Kuomintang 
government has not only enacted many arbitrary domestic 
measures but also has many times singly conducted diplomatic 
negotiations of a serious nature with certain foreign govern- 
ments. In the course of understandings, both oral and written, 
secret and open, without these agreements and understandings 
having been passed by the Political Consultative Conference or 
consulting opinion of this party and other parties and groups 
participating in Political Consultative Conference. 

These diplomatic negotiations include loans from foreign 
governments, continuation of Lend-Lease, buying and accepting 
of munitions and surplus war materials, forming of treaties 
regarding special rights in commerce, navigation, aviation and 
other economic and legal special rights. 

These negotiations and agreements request or permit foreign 
land, sea and naval forces to be stationed in or operate on the 
seas, waterways, territories, and in the air of the country, and 



1 5 Ibid., 707. 

16 Ibid., 719. 



227 

to enter or occupy and jointly construct or make use of military 
bases and points strategic to the national defense. They further- 
more request or permit foreign military and other personnel to 
participate in organization, training, transportation and military 
operations of land, air and naval forces of the country, and to 
become conversant with military and other state secrets of the 
country. They also permit such serious matters as foreign inter- 
vention in internal affairs. 

These measures of the Chinese Kuomintang government are 
completely contrary to the will of the Chinese people and they 
have plunged and will continue to plunge China into civil 
war, reaction, national disgrace, loss of national rights, coloniza- 
tion and crisis of chaos and collapse. In order to rescue the 
motherland from this calamity, to protect national rights and 
interests and the dignity of the Political Consultative Con- 
ference, the Chinese Communist Party solemnly states: This 
party will not either now nor in the future recognize any foreign 
loans, any treaties which disgrace the country and strip away 
its rights, and any of the above mentioned agreements and 
understandings established by the Kuomintang government 
after January 10, 1946, nor will it recognize any future diplo- 
matic negotiation of the same character which have not been 
passed by Political Consultative Conference or which have not 
obtained agreement of this party and other parties and groups 
participating in the Political Consultative Conference. * * * 
A similar mixture of half truth and falsity was prepared and 
spread to embarrass General Marshall during the negotiations for 
the August 30th Agreement and thereafter. His position was made 
doubly difficult because on 29 July 1946 munitions exports had been 
embargoed from the United States to China and also in mid-August 
from the Pacific bases. This action was taken, apparently, to 
buttress General Marshall's neutral position as mediator, rather 
than as a form of pressure upon the Generalissimo and the Kuomin- 
tang leaders. 17 The Surplus Property Agreement then gave the 
Communists a new propaganda foothold. 

General Marshall appears to have taken rapid action in an effort 
to offset this propaganda opening given to the Reds. In the words 
of the State Department : 18 

In view of continued Chinese Communist propaganda attacks 
on the surplus property agreement of August 30, 1946, General 
Marshall gave a very detailed explanation of this transaction 



17 Ibid., 355. 

18 Ibid., 180. 



228 

to the Communist Party representative. He pointed, out that this 
transaction had been under discussion since the beginning of 
1946 and had been almost settled at the time of General Mar- 
shall's departure for the United States in March. During his 
visit to the United States he had ironed out most of the dif- 
ficulties involved and the failure to reach an agreement on this 
transaction in February had resulted from Chinese Government 
efforts to improve the terms. The alternative to completing an 
agreement with China for the sale of this surplus property was 
the immediate disposal of the property to other governments 
in the Far East or dumping it in the ocean, courses of action 
which would have deprived China of material of considerable 
importance in the economic rehabilitation of the country. 

General Marshall continued that Chinese Communist prop- 
aganda had imputed to this transaction every evil purpose 
possible and that great harm had thus been done. He concluded 
that while he accepted this propaganda as inevitable, he was 
greatly disturbed when a proposal such as that for the informal 
Five-Man Committee was being destroyed as a result of such 
propaganda. 

The Chinese Communist Party representatives, however, con- 
tinued to be critical of the surplus property agreement on the 
grounds that items such as trucks, communications equipment 
and army rations and uniforms would be used for civil war 
purposes and other items would be sold on the market and 
the proceeds thereof expended for military purposes. * * * 
The Agreement thus provided the Communists with a ready 
answer to resist influence by persuasive diplomatic techniques. 
Their punch in fact had been "telegraphed" by Stalin in his dis- 
cussions with Secretary Byrnes in Moscow in December 1945. Stalin 
suggested that Chiang Kai-shek "would lose his influence if the 
Chinese people got the impression that he was depending on foreign 
troops." 19 

The United States, after demobilization, lacked adequate military 
forces to affect the issue in China decisively. Its remaining weapons 
were advice and economic aid. The advice was difficult to give and 
poorly received because of chauvinistic sentiment within the Kuomin- 
tang. The economic aid, massive as it later became, was considered 
by no one likely to affect the Nationalist-Communist contest. The 
battle at this time was one for the loyalties of the Chinese. This 
loyalty was either unaffected or repelled by the American assistance. 
There were no rational alternatives open to the United States 



19 Feis, The China Tangle, 427 (1953) 



229 

other than extending aid. But the effect of this aid had been effec- 
tively precluded by the anti foreign gambit placed in the hands of 
the Communists by the Surplus Property Agreement. 

In testifying before an executive session of the Senate Foreign 
Relations Committee, General Marshall, then Secretary of State, 
discussing the proposed China Aid Act of 1948, put the matter 
succinctly : 20 

We must be prepared to face the possibility that the present 
Chinese Government may not be successful in maintaining itself 
against the Communist forces or other opposition that may 
arise in China. Yet, from the foregoing, it can only be con- 
cluded that the present Government evidently cannot reduce the 
Chinese Communists to a completely negligible factor in China. 
To achieve that objective in the immediate future it would 
be necessary for the United States to underwrite the Chinese 
Government's military effort, on a wide and probably con- 
stantly increasing scale, as well as the Chinese economy. The 
U.S. would have to be prepared virtually to take over the 
Chinese Government and administer its economic, military 
and governmental affairs. 

Strong Chinese sensibilities regarding infringment of China's 
sovereignty, the intense feeling of nationalism among all 
Chinese and the unavailability of qualified American personnel 
in the large numbers required argue strongly against attempting 
any such solution. 

It would be impossible to estimate the final cost of a course 
of action of this magnitude. It certainly would be a continuing 
operation for a long time to come. It would involve this Govern- 
ment in a continuing commitment from which it would be prac- 
tically impossible to withdraw, and it would very probably 
involve grave consequences to this nation by making of China 
an arena of international conflict. An attempt to underwrite 
the Chinese economy and the Chinese Government's military 
effort represents a burden on the U.S. economy and a military 
responsibility which I cannot recommend as a course of action 
for this Government. 

On the other hand we in the Executive Branch of the Govern- 
ment have an intense desire to help China. As a matter of fact, 
I have struggled and puzzled over the situation continuously 
since my return. Our trouble has been to find a course which we 



20 United States Relations With China, 382 (Department of State Publication 
3573) (1949). 



230 

could reasonably justify before Congress on other than emo- 
tional grounds. * * * 

Present developments make it unlikely, as previously in- 
dicated, that any amount of U.S. military or economic aid 
could make the present Chinese Government capable of re- 
establishing and then maintaining its control throughout all 
of China. * * * 

Peruvian Coup d'etat: 
Ambit of Arrest 

As important as the criterion that a wealth weapon have sustentive 
range, which the Surplus Property Agreement lacked, is the closely 
related criterion that side effects of the weapon be suppressible. 
This, as noted previously, is described as the "ambit of arrest"' of 
effects of the weapon. These side effects are notoriously difficult to 
foresee in economic warfare. 

All interaction stimulated by economic warfare is not susceptible 
to control. It is critical, however, that conditions precluding ac- 
complishment of the goal of use of the wealth weapon be subject 
to influence. 

An example of the difficulty in dealing with the ambit of arrest 
of an economic weapon is illustrated by the United States response 
to the Peruvian coup d'etat of 18 July 1962. Within a few hours 
after President Prado's overthrow was announced, the United 
States broke diplomatic relations with Peru and terminated all aid 
except a school lunch program. Within a month, on 17 August 1962, 
diplomatic relations were resumed and aid, other than the military 
programs, was restored. By this date the military regime was firmly 
in control, having survived a general strike and broken the voting 
power of the opposition APEA party. 

No doubt motivated by a desire to regain the goodwill of the 
United States, the Junta gave President Prado his freedom when 
his term of office expired. Impartial presidential elections were 
promised in 1963 under a revised electoral law. 

These were liberal gestures, but the Junta had declared these 
policies in substance shortly after it seized power. Economic pres- 
sure may have produced an unequivocal statement of these policies. 
But there seems little reason to suppose that the Junta ever intended 
to do other than carry out its original commitments. 

The purposes sought by the United States in terminating aid to 
Peru were never stated with clarity in official press releases. News 
commentators were in some confusion concerning the matter. 

Probably two objectives were sought: (1) Weakening the Junta 



231 

to permit its overthrow by the APRA general strike and (2) 
Demonstrating United States disapproval of military coups d'etat 
directed against civilian governments elected by democratic processes. 

No doubt the latter objective was partially achieved. However, 
a wholly convincing expression of disapproval would require with- 
holding aid while the Junta held power, since a few months earlier 
aid had been restored to a civilian government supported by military 
officers who had overthrown President Frondizi of Argentina. The 
net psychological effect upon prospective military rebels seems to 
have been that of a precautionary rap upon the knuckles. But the 
first objective, if in fact overthrow of the Junta was an objective, was 
unattainable because the United States had no effective method to 
control side effects of the withdrawal of aid. There was no ambit 
of arrest of these effects. 

These side effects stemmed principally from resistance within 
Peru to intrusion by the United States into its internal affairs. There 
was support to this resistance by leading Latin American states, 
including Argentina, Brazil and Mexico. 

To carry through its Peruvian policy to the goal of overthrow 
of the Junta by nonviolent means would require moves by the 
United States against a substantial number of other Latin American 
countries. These moves might be by economic or other sanctions. 
In all likelihood such moves would have been inconsistent with the 
principles of the Alliance for Progress and probably also in con- 
flict with the nonintervention provisions of treaties to which the 
United States is a party. Pragmatically, and legally as well, the 
United States was barred from containing the forces which its 
withdrawal of aid set in motion. 

The prospect of military interference in the Peruvian elections 
of June 1962 had been evident for months before results of the 
elections were known. Military members of President Prado's cabinet 
had warned that the elections would be vitiated by fraud. 

The facts upon which this apprehension of fraud rested, or the 
findings of fraud alleged by the military after the elections, were 
never publicized in the United States. It is reasonable to surmise, 
however, that the underlying difficulty was total incompatibility 
between the Peruvian military elite and the leaders of the APRA 
party. 

APRA had been founded by Dr. Haya de la Torre, its presidential 
candidate in the elections of 1962. The party controlled the Peruvian 
Confederation of Labor. 

In its early years, APRA had been dominated by Communists. 
It had engaged in two armed clashes with the Peruvian Army and 



232 

Navy, once at Trujillo in 1932, where a number of Army officers had 
been killed, and thereafter at Callao in 1948, where it fomented 
a naval mutiny. Although APRA at the time of the coup d'etat in 
1962 was reputed to be mildly socialistic and strongly anticommunist, 
the old leaders, such as Haya de la Torre, remained. The latter, in 
particular, was anathema to the generals and admirals of the 
Peruvian Armed Services. 

There was little that the United States could do about this great 
gulf between APRA and the military services. However, United 
States policy makers appear to have been convinced that APRA 
was supported by a popular majority and would provide the best 
guarantee against a communist foothold in Peru. From press re- 
leases, it appears that Ambassador Loeb had informed certain 
Peruvian military leaders that a coup d'etat would be opposed by 
United States sanctions. 

When the votes were tallied some three weeks after the election, 
Dr. Haya de la Torre was found to have prevailed by about 14,000 
votes over his nearest opponent, Belaunde, who had been supported 
by a number of influential military leaders. A third party, led by 
former President Odria, polled sufficient votes to swing the balance 
for or against APRA in the presidential election. 

Under the Peruvian Constitution no presidential candidate was 
elected unless he polled more than one third of the votes cast. If no 
candidate polled the necessary one third, the election was thrown 
into the Peruvian Congress. There APRA could prevail unless 
Belaunde and Odria combined. 

The center of power thus shifted to Odria, a retired general, who 
had outlawed APRA and bottled up Haya de la Torre for five 
years in the Colombian embassy in Lima during his earlier term in 
office as President. Surprisingly, although Odria's Social Christian 
Party had substantial support from certain labor unions, discus- 
sions commenced between Odria and APRA leaders with a view to 
withdrawal of Haya de la Torre and a substitution of Odria for 
the Presidency. 

Influential military leaders opposed this alliance. For this and 
other reasons the discussions broke down. 

The Odria-APRA discussions were the last clear chance to avoid 
a coup d'etat. On 11 July the National Electoral Board rejected 
a petition by Belaunde to set aside the vote in critical La Libertad 
Department. The Board refused credence to military reports of 
irregularities in this Department in registration and voting. 

When President Prado refused to set the elections aside, since he 
had no constitutional power to do this, the military Junta seized 



233 

control. The response of the United States followed within hours. 

The withdrawal of aid came as a shock to the Junta, most of 
whom were well disposed towards the United States. There is no 
indication that a withdrawal of aid deflected them from their course 
in any way. 

The Junta took steps to mend its breached relations with the 
United States. But because the Junta controlled communications 
within Peru, the military communications net extending into the 
most primitive communities, the withdrawal of aid could be turned 
to the advantage of the Junta. 

Odria, who had advocated a constitutional approach to solve the 
election difficulty, now denounced the American intervention. He 
gave his tacit blessing to provisional government by the Junta, and 
played no small part by withdrawal of union support from APRA 
in breaking the general strike called against the Junta on 21 July. 

By the end of July the nationalistic reaction had been such that 
APRA's voting power was temporarily broken. Business was return- 
ing to normal. Argentina and Brazil made gestures of support for 
the Junta ; although other Latin American states, such as Venezuela 
and Chile, had broken diplomatic relations. 

In the early days of August, the facts gradually became clear 
that the Junta did control Peru. The Junta was accepted by most 
Peruvians, was willing to honor its international obligations and 
planned to return the country to a civilian government after reforms 
in the election laws. Further economic pressure would be likely to 
push the military leaders into a form of Andean "Nasserism." 
Peru would be encouraged to seek trade outlets other than its 
traditional markets in the United States. 

For these reasons, and perhaps others undisclosed, there was no 
effort to bring pressure by removal of the premium on Peruvian 
sugar sold in the United States market. This technique had been 
used earlier with good effect against General Trujillo of the 
Dominican Republic. 

The motive underlying action by the United States was laudable. 
The election had been a fair one by Peruvian standards. The polling 
places were supervised by the military. The allegations of fraud 
were considered by a presumably unbiased constitutional Electoral 
Board and rejected. 

But apart from the propriety of the object, or the prospect for its 
attainment by other means, the wealth technique used precluded 
attainment of the goal. Forces not subject to control by the United 
States generated by wealth pressure strengthened rather than 
weakened the regime assaulted. 



234 

2. Choice of a Wealth Weapon to be Used Against Antioka 

a. MANIPULATION OF ECONOMIC AND MILITARY 

ASSISTANCE 

Economic and Military Aid Programs 

The economic and military aid to Antioka may be manipulated 
as a wealth weapon. Ten million dollars currently is being expended 
in Antioka as military assistance. A loan of $12,000,000 has been 
made from the Development Loan Fund. How much of these 
amounts remain unexpended is unknown at the time of the Con- 
ference. A Development Grant is under consideration. 

The domestic law of the United States permits the President to 
suspend or terminate economic and military foreign aid in his 
discretion. 21 Under the Foreign Assistance Act of 1961 as amended, 22 
the President controls the terms and conditions of Development 
Loans, 23 Development Grants 24 and Military Assistance. 25 

With respect to Development Loans and Grants, including as- 
sistance rendered under the Alliance for Progress, 26 the President's 
authority clearly includes the power to determine the consistency 
of the aid activity with other development activities planned. He 
may also determine the extent to which the recipient government 
is responsive to the vital economic, political and social concerns of 
its people. 27 

The Congress has stipulated Military Assistance will be furnished 
solely for the internal security of the country concerned; for its 
legitimate self-defense; to permit the recipient country to par- 
ticipate in regional or collective measures consistent with the 
Charter of the United Nations or collective measures requested by 
the United Nations to maintain or restore international peace and 



21 Foreign Assistance Act of 1961, 75 Stat 424, 444 (1961) section 617: "As- 
sistance under any provision of this Act may, unless sooner terminated by the 
President, be terminated by concurrent resolution. * * * " 

22 At the time of writing, amendments appear in the Foreign Assistance Act 
of 1962, 76 Stat. 255 (1962) and the Foreign Assistance and Related Agencies 
Appropriation Act, 1962, 75 Stat. 717 (1961). 

23 75 Stat. 426 (1961) section 201(b). 

24 75 Stat. 427 (1961) section 211(a). 

25 75 Stat. 435 (1961) section 503. 

26 The Alliance for Progress appears as an amendment to the Act for Inter- 
national Development of 1961 (Part 1 of the Foreign Assistance Act of 1961) in 
the Foreign Assistance Act of 1962, 76 Stat. 255, 257 (1962). The powers of the 
President with respect to assistance under the Alliance for Progress are as 
extensive as under the other aid laws. 

27 E.g., 75 Stat. 426 (1961) section 201(b) (4) (5). 



235 

security. 28 Defense articles cannot be furnished on a grant basis to 
any country at a cost in excess of $3,000,000 per fiscal year unless 
the President determines, among other things, that the country 
conforms to the principles and purposes of the United Nations and 
the defense articles will be utilized by the country to maintain its 
own defensive strength and the defensive strength of the free 
world. 29 

In each executive agreement made with a foreign state for 
Military Assistance, the Congress has required stipulations con- 
cerning the use and disposition of defense articles. For example, the 
Agreement between the United States and El Salvador contains 
the following clauses : 30 

1. * * * The defense articles and defense services referred to 
above shall be used for internal security purposes and for the 
Defense of the Western Hemisphere in accordance with the 
Charter of the United Nations and the Inter-American Treaty 
of Reciprocal Assistance. 

2. * * * El Salvador will not permit any use of defense articles 
and defense services furnished under this Agreement by anyone 
not an officer, employee or agent of the Government of the 
Republic of El Salvador. 

3. * * * El Salvador will not transfer, or permit any officer, 
employee or agent of that country to transfer such defense 
articles and defense services by gift or otherwise. 

4. * * * El Salvador will not, without the consent of the 
United States, use or permit the use of such defense articles 
and defense services for purposes other than those for which 
furnished. 

5. * * * El Salvador will maintain the security of such defense 
articles and defense services, and will provide substantially 
the same degree of security protection afforded to such articles 
by the United States Government. 

6. * * * El Salvador will, as the United States may require, 
permit continuous observation and review by, and furnish 
necessary information to, representatives of the United States 
with regard to the use of such defense articles and defense 
services. * * * 

The General Agreement for Economic, Technical and Related 



28 75 Stat. 436 (1961) section 505(a). Military Assistance provisions are con- 
tained in the International Peace and Security Act of 1961 (Part II of the 
Foreign Assistance Act of 1961 ) . 

29 75 Stat. 436 (1961) section 406(b). 
™TIAS 5040 (1962). 



236 

Assistance between El Salvador and the United States, also a fair 
example of the agreements negotiated by the United States for 
nonmilitary economic assistance, states in Article VI (2) : 

All or any part of the program of assistance provided here- 
under may, except as may otherwise be provided in arrange- 
ments agreed upon pursuant to Article I hereof, be terminated 
by either Government if that Government determines that be- 
cause of changed conditions the continuation of such assistance 
is unnecessary or undesirable. The termination of such assistance 
under this provision may include the termination of deliveries of 
any commodities hereunder not yet delivered. * * * 31 
A clause similar to this has been inserted in current agreements 
made pursuant to the Alliance for Progress. 32 

In addition to his power to withdraw economic or military aid 
conferred by domestic law and reserved in the aid agreements, the 
military aid agreements being expressly subject to the provisions of 
the Foreign Assistance Act of 1961, the President has inherent 
power in the conduct of the foreign affairs of the United States, 
pursuant to Article II, section 2(2) of the United States Con- 
stitution, to terminate any aid program when proper management 
of the foreign affairs of the United States requires it. 

The discretion in the President to increase economic or military 
aid to Antioka is not so plenary as his power of suspension or 
termination. He is certainly limited by the amounts appropriated by 
the Congress for foreign aid. Specific limits for certain classes of 
aid may also be imposed. For example, a limit of $57,500,000 per 
fiscal year has been imposed by the Congress upon the total value 
of defense articles transferred by grant to all American Republics. 33 
Apart from an absolute prohibition of assistance to the "present" 
government of Cuba * * */the Castro-Communist government/* * *, 
a matter not relevant to the considerations of the Conference, in 
Situation 5, there are only three absolute barriers to an increase in 
aid in the discretion of the President. 

Aid cannot be given to a country unless the President determines 
the country is not dominated or controlled by the international 
Communist movement. 34 
If a country is taken over by Communists, aid cannot be increased 



^TI AS 4971 (1961). 

32 E.g., Agreement Between United States and Dominican Republic, TIAS 
4936 (1962) Art. VII (2). 

33 75 Stat. 438 (1961) section 511(a). 

34 75 Stat. 445 (1961) section 620(b). 



237 

but must be terminated, no matter what the potential of a wealth 
weapon involving an increase in aid may be. 

Aid is sharply restricted if a country receiving assistance under 
the Foreign Assistance Act of 1961 nationalizes, expropriates or 
seizes property owned by a United States citizen or by a corpora- 
tion, association or partnership in which a United States citizen 
has at least 50% beneficial ownership; or expropriates indirectly by 
methods such as discriminatory taxation; and then fails to take 
steps within six months to offer relief to the United States citizen 
suffering loss. The President must suspend the aid program to the 
country concerned until he is satisfied appropriate steps by the 
country to give relief to the citizen are being taken. 35 If he must 
suspend aid, he cannot increase or restore the aid until the requisite 
facts can be found. 

Also no monetary assistance can be given to a government which 
will use the money to compensate owners of expropriated or 
nationalized property. If the President finds money diverted for 
this purpose, no further aid can be given under the Foreign Assis- 
tance Act of 1961 until the amount diverted is refunded to the 
United States. 36 

Other barriers in domestic law to an increase in aid are partial 
only and may be avoided if the President finds the increase in the 
national interest or necessary for the national security. Thus if the 
President determines that a Communist country is not controlled 
by the "international Communist conspiracy" and reports this to the 
Congress; and also finds and reports: (1) the assistance is vital 
to the security of the United States; and (2) the assistance will 
promote the independence of the recipient country from inter- 
national communism; aid may be extended under the Foreign As- 
sistance Act of 1961 P 

A country which furnishes assistance to the "present" * * VCastro- 
Communist/* * * government of Cuba may receive aid, and thus 
an increase in aid if necessary, if the President "determines that 
such assistance is in the national interest of the United States." 38 

If a country is indebted to any United States citizen or person for 
goods or services furnished, the indebtedness arising under an un- 
conditional guaranty of payment given by the government or its 



35 76 Stat. 260 (1962) section 301(3) (new subsection "(e)" to section 620 of 
the Foreign Assistance Act of 1961). 

36 Ibid., (new subsection "(g)" to section 620 of the Foreign Assistance Act 
of 1961). 

37 Ibid., (new subsection "(f)" to section 620 of the Foreign Assistance Act 
of 1961). 

38 75 Stat. 719 (1961) section 109; 76 Stat 260 (1962) section 301(d)(1). 



238 

predecessor, the indebtedness not being denied, and the creditor 
having exhausted his legal remedies, including arbitration, the 
President can nevertheless extend aid if he finds that a denial of 
aid would be "contrary to the national security." 39 

Possible Uses of Economic and Military 
Aid Programs in Economic Warfare 

It is a fair assumption that aid agreements with Antioka have 
clauses similar to those in the economic and military aid agreements 
with El Salvador. There would thus seem no obstacle in either 
domestic or international law to a suspension, reduction or termina- 
tion of any feature of the current aid program. 

The economic aid agreement is terminable. The military aid agree- 
ment is subject to the terms of the Foreign Assistance Act of 1961. 
Furthermore, our intelligence services may discover Gondomar has 
delivered to Salvaje defense articles received from the United 
States in violation of the Agreement. 

Also, if an increase in aid to Antioka should appear a desirable 
method for interrupting aid to Salvaje by Antioka, there is nothing 
except a limit on appropriations by Congress to prevent this in- 
crease. Antioka is not controlled by the international Communist 
movement. It has not nationalized or expropriated property of 
United States citizens nor has it refused to pay guaranteed debts 
to them based upon goods and services rendered. 

Rewards to Antioka for violations of international law by inter- 
vening in Nuevan internal affairs may place a premium on legal 
"waywardness" by Gondomar and the members of his government. 
For this reason, an increase in aid is not a desirable course under 
the circumstances but cannot be excluded completely as an alterna- 
tive. 

Manipulating economic or military aid or both appears super- 
ficially as the most desirable method for pressure to interrupt the 
trade with Salvaje. The "legal" latitude for action, both in domestic 
and international law is broad. The aid program is amenable to 
rapid change. Quite certainly any change in the Program would have 
substantial impact upon Antiokan internal affairs. Some of the 
requisites for an effective "economic sortie" are met. But certain 
major requisites are missing. 

Inability to Direct Manipulations of 
Foreign Aid : Delayed Reaction 

The first requisite missing is susceptibility to direction. If our 



39 76 Stat. 260 (1962) section 301(d) (2), 



239 

estimates of Gondomar's power to interrupt the aid to Salvaje are 
correct, our economic action should be "aimed" at Gondomar. 

An "economic sortie" cannot be directed as one would aim a rifle 
or lay artillery. The direction of an economic sortie, to the extent 
that any analogy can be made to a weapon, resembles the direction 
by target stimulus, employed in the heat, light or noise seeking 
projectile or missile. The point of impact of the heat, light or noise 
seeking weapon depends upon configuration of the target area and 
activity within it. 

In economic warfare, the impact point of the force developed by 
an economic weapon depends upon the value configuration of the 
target area or value structure of the group within which influence is 
sought. A wealth weapon must be chosen which will follow the value 
"channels" or create the kind of interaction that will result in 
psychical impact upon the target. This capability, like the missile 
directed by target stimulus, depends upon the weapon chosen. 
Choice of the weapon is the key to direction. 

Within six months or a year, manipulation of the aid program 
might induce Gondomar to cut off assistance to Salvaje. No im- 
mediate response by Gondomar should be anticipated because the 
impact upon him would be secondary. The primary impact would be 
upon military personnel, businessmen, agricultural workers or miners 
within Antioka. These persons might then bring their influence to 
bear upon Gondomar to act as the United States demands in order 
to obtain restoration of the withheld aid. How quickly these in- 
digenous influences could be brought to bear upon Gondomar depends 
upon the influence channels in Antioka through which pressure 
may be exerted; obstructions in these channels which Gondomar 
might place; and supporting measures, by economic measures or 
otherwise, which the United States might develop. 

If Gondomar's political position is a strong one, his reaction to 
a withdrawal of aid is likely to be slow even though the pressure 
upon his people is great. Time is of the essence if Salvaje's military 
effort is to be weakened or Scythian support of Salvaje brought 
into the open before the meeting of the Organ of Consultation of 
the Organization of American States. More time might be expended 
in manipulating foreign aid than can be spared under the circum- 
stances. 

Even if a United States policy maker is prepared to wait until 
the secondary effect occurs, the intensity of impact is speculative 
because of difficulty in directing the thrust of the weapon. The 
impact might be slight if persons within Antioka are injured who 
have little influence upon Gondomar. A value loss to Antioka might 



240 

be produced without a compensating decision advantageous to 
hemisphere defense and security of the general community. It is 
also possible that once influence is brought to bear upon Gondomar, 
his political position will be so shaken by its intensity that any 
decision he makes in response to the United States demand will be 
rendered illusory. 

Limited Ambit of Arrest and Sustentive 
Range in Foreign Aid Manipulations 

Manipulation of the aid program also suffers as an effective eco- 
nomic weapon from a limited ambit of arrest of side effects and 
a lack of sustentive range. These features, as previously indicated, 
are closely related. 

Several questions should be considered concerning the ambit of 
arrest of side effects. Gondomar is now friendly toward the United 
States. Other problems between Antioka and the United States, 
perhaps more serious than the one now presented, will arise in the 
future. 

To facilitate the solution of these problems, assuming Gondomar 
continues in power, a policy should be avoided which reduces the 
intensity of his expectations of indulgences to be derived from 
continued friendship with the United States. If Gondomar looks 
elsewhere for aid, what avenues for influence by Scythia in Antioka 
may be presented and what devices might the United States employ 
to close these avenues? 

Will opportunities be presented to Communists or other indigenous 
radicals to aggrandize their power if economic and social distress 
within Antioka is increased by a suspension or termination of aid? 
If radical shifts of power occur within Antioka by a suspension or 
termination of aid, the United States may find itself in such a situa- 
tion that the only technique available to moderate the rate of 
internal change is additional aid. Additional aid may accentuate 
existing political cleavages in Antioka. A powerful but increasingly 
isolated and economically dependent elite may be created upon 
which the policies of the United States must then be oriented. 

The restricted sustentive range of manipulations of foreign aid 
in economic warfare is especially marked. This is due to the state 
of the domestic law concerning foreign aid; "reciprocal controls" 
which a recipient state can exert; and a "folk- way" expectation of 
economic aid flowing from centers of great productivity, such as the 
United States, the Soviet Union and the countries of Western 
Europe. This folk-way expectation has emerged as a postulate of an 
obligation to supply the "needs of the needy" upon which foreign 



241 

aid reasoning in both donor and recipient states tends to be 
founded. 

Limitations Imposed By Domestic Law 

Under the Foreign Assistance Act of 1961 and its amendments 
there is danger in exerting intense pressure, by economic means or 
otherwise, upon a state, particularly a small one. A later extension 
or resumption of aid to the state may then be foreclosed unless 
the Congress expressly grants to the President the authority to 
extend or resume economic aid. 

Withdrawals of foreign aid tend to exert much pressure upon 
a recipient state. The response of a small state threatened with 
economic pressure by a larger and more powerful antagonist tends 
to be a defense by wealth weapons. Those most conveniently at 
hand are devices, such as confiscation or discriminatory taxation, to 
deprive nationals of the larger and more powerful antagonist of 
their local assets. This was one response of the Castro Govern- 
ment in the early phases of the "Sugar Encounter" described in 
Chapter II. 

By Section 620(e) of the Foreign Assistance Act of 1961, as 
amended in 1962, if the small state is forced to the extreme of 
expropriation as a defensive measure, the flexibility of the President 
in using foreign aid for further pressure is limited. The President 
cannot renew the aid until the expropriating state takes appropriate 
steps to discharge its obligations under international law to the 
injured United States citizen. He will have to go to Congress for the 
appropriate authority. 

A similar problem arises concerning the statutory prohibition of 
aid to the government of a country dominated or controlled by the 
international Communist movement. 40 If pressure forces a state into 
the Communist orbit because the ambit of arrest of the side effects 
of a wealth weapon is restricted, efforts to retrieve the state as a free- 
world member by cajoling its government with foreign aid are 
precluded. 

The President in such a case must use funds other than those 
appropriated in the Foreign Assistance Act of 1961 as amended. 
Alternatively he might go to the Congress for increased authority; 
rely upon a wealth weapon otjier than foreign aid; utilize some 
other coercive or persuasive device; or simply write off the state 
as a member of the free world and the property of United States 
citizens in that state with it. 



40 75 Stat. 445 (1961) section 620(b) 



242 

A technique offering a degree of sustentive range in the manipula- 
tion of foreign aid is to "lead" with an "indulgence" or aid increase. 
The aid increase can then be coupled by a withdrawal of the aid 
to secure the desired decision. A lack of sustentive range appears 
with the withdrawal. A "lead" with an increase in foreign aid to 
Antioka would appear unwise if Gondomar in fact is the decision 
maker to be influenced. 

Reciprocal Control in Foreign Aid 

The element of "reciprocal control," which reduces the sustentive 
range of withdrawals of foreign aid, has been considered by Pro- 
fessor George Liska. 41 Professor Liska views foreign aid as a 
contest between the Soviet Union and the United States for the 
allegiance of uncommitted countries by influencing the processes 
controlling the future institutions of the target states. 42 This perspec- 
tive is widely shared. 

An ideal foreign aid relationship, as Professor Liska sees it, is 
one in which "the needs and demands of donor and recipient 
* * */are/* * * neutralized whenever the caliber of their interests 
are comparable. * * * 43 This balance, he thinks, is not maintained 
because the controls exercised by the recipient states often tend 
to be more effective than the controls maintained by the United 
States. 

The reciprocal controls by the recipient, as described by Liska, 
are usually conscious maximizations of the side effects of a wealth 
weapon used against the recipient. In Antioka Gondomar might 
point to the undesirable alternatives if his power is weakened by 
a withdrawal of foreign aid. Castro-Communist elements almost 
certainly are active in his country. Weakening Gondomar may 
enhance the relative strength of the Castro-Communists. 

He may, as did the Peruvian leaders in 1962, suggest reorientation 
of Antiokan trade. His country now relies upon the United States 
for wheat, textiles and hard goods. These can be obtained elsewhere. 
A flow of dollars to Antioka means a flow of dollars to United States 
agriculture and industry so long as this trade pattern is maintained. 

Perhaps Gondomar might threaten recourse to Scythia as a 
substitute for discontinued aid from the United States. While con- 
sumer goods furnished by Scythia may be below the standard 
maintained by the United States, its military hardware may be as 



4i Liska, The New Statecraft, 19-23 (1960). 
42 Ibid., 4-5. 
« ibid., 32. 



243 

satisfactory and its military advisors as good as those the United 
States can provide. 

Counterpressures of this sort have critical political force in the 
United States. Foreign aid cannot be interrupted without publicity ; 
and counterpublicity of threatened countermeasures may prevent 
supporting action of any sort because of activity by stimulated 
pressure groups within the United States. 

Folk-Way Expectation of Aid: "Neo feudalism" 

The folk-way expectation of aid flowing from centers of great 
productivity, discussed in Chapter I of this book, cannot be said 
to have reached a threshold of expression as a protolegal inter- 
national institution. That it may cross this threshold within the 
present century is a distinct possibility. 

There are not many instances, whether in the family, private 
charitable relationships, public charitable relationships, or extended 
foreign aid programs, in which constant repetition of an indulgence 
is not eventually regarded as a matter of right by the donee and an 
obligation of the donor. With respect to foreign aid, the process is 
much the same as that observed in domestic systems of law when a 
legal prescription becomes supported by nonlegal conduct patterns. 
Ethical norms are as easily created by law as law is developed in 
response to changing ethical norms. 

An extensive prolongation of aid to a state produces institutions 
and conduct patterns based upon the flow of assistance. Especially 
when aid has been extended to encourage the creation of nonviable 
states, by the prevailing judgment in the Free World it appears 
"ethically" wrong to interrupt this aid suddenly. This judgment 
may well have molded attitudes concerning the interruption of aid 
to a viable state as well. 

While the donor of aid is legally free to withdraw it for coercion 
or convenience, it is not ethically free to do so. The consequences of 
the ethical breach must be considered. These consequences may range 
from attriting domestic support for an economic warfare program 
to a total lack of foreign support from other states. 

Withdrawing United States aid to Peru in 1962 initially had 
domestic approval. This approval diffused as press reports em- 
phasized the suddenness and force of the withdrawal and the 
surprise of the military leaders at termination of the aid. The 
Western Hemisphere states supporting the United States were 
those which apprehended military coups d'etat and hoped to avert 
these by insuring the success of the United States action. Other 
states of the Free World were neutral or watched for an opportunity 



244 

to divert Peruvian trade from the United States. The Communist 
dominated political parties of Peru hoped to benefit by economic and 
social distress which termination of the aid might produce; and 
no doubt would have done so with the assistance of Castro-Com- 
munist Cuba or the Soviet Union had pressure by the United States 
been maintained. 

Whether further action by the United States against the Junta 
would have received general political support in the United States 
in August 1962 is debatable. That few allies of the United States 
could be induced to join in punitive action against the Junta is 
evident. 

3. Exploitation of Trade in Tin, Wheat, Textiles and Hard Goods 

Perhaps the most fruitful approach to force a decision by Gon- 
domar to interrupt trade with Salvaje is to exploit the trade pattern 
of Antioka with the United States or with other countries. The 
most effective point of attack appears to be upon the tin industry 
of Antioka because an advantage or detriment offered here will 
affect Gondomar directly due to his personal interest in the produc- 
tion and sale of Antiokan tin. 

While tin appears to be the only major export from Antioka 
to the United States, there is no significant trade advantage to be 
offered with respect to this commodity other than a premium or 
subsidy above the world price. This premium or subsidy would 
require action by Congress. The time available precludes the delay 
Congressional action would require. 

There is a tendency to overproduce tin in the world market. This 
is due principally to the mechanization of tin mining. There is 
not, however, the same tendency to fluctuations in production en- 
countered in agricultural commodities. 

There is a marked fluctuation in the consumption of tin. Tin 
consumption is highly sensitive to changes in the level of business 
activity. The consumption of tin is closely linked to steel con- 
sumption. Both metals are used in all important tin applications. 

Tin is also price "inelastic." Fluctuating prices in tin have little 
effect on the consumption rate, although the consumption rate 
affects the price of tin. 

Due to the demand for price stability in the world tin market, 
there has developed, as in the case of sugar, an international com- 
modity agreement, the latest being the International Tin Agreement 
of I960. 44 An International Tin Council established under this 
agreement, with its seat in London, revises floor and ceiling prices 



44 United Nations Tin Conference, 1960, Summary of Proceedings, C/CONF. 
32/5, p. 25. 



245 

established initially in the agreement, determines exportable quan- 
tities of tin from producing countries, and maintains a buffer 
stock for the contribution and withdrawal of tin to maintain a 
stable market price. The Manager of the buffer stock buys, sells 
and maintains stocks of tin in accordance with detailed criteria stated 
in the agreement. 

United States refined tin imports are fairly constant. The imports 
fluctuate because of interruptions in steel production, such as those 
caused by strikes. Secondary tin, recovered from scrap, accounts 
for about one third of the tin consumption in the United States. 
This use of secondary tin, coupled with a trend to the use of paper 
and plastic packaging suitable for deep freeze storage, will probably 
maintain a constant level. 

The demand for refined tin may increase. In a military emergency, 
large quantities of tin are consumed. The United States has only 
one tin smelter, at Texas City, Texas, once owned and operated 
by the United States Government but now in the hands of private 
owners. This smelter accounts for imports of cassiterite or tin ore 
into the United States. 

While tin can be stored easily, United States manufacturers do 
not stockpile large quantities of tin because of its relatively high 
cost. Tin ingot and cassiterite are already on the "free" customs 
list. No tariff reduction is possible under the Trade Expansion Act of 
1962. 45 Such a tariff reduction would require in any event an ex- 
penditure of more time than could be allowed to obtain the desired 
decision from Gondomar. Trade negotiations, the advice of the 
Tariff Commission and Executive Departments and a public hear- 
ing would be required before a reduction upon appropriate items 
could be put into effect. 

Perhaps technical assistance or economic aid could be furnished 
to enable Gondomar to lower the cost of production of tin and thus 
operate on the world market with an advantageous profit margin. 
Mechanizing the mines would reduce the labor force and increase 
the problem of unemployment. Such a policy would have to be 
reconciled with the policy supporting the Development Loan of 
$12,000,000 to assist in resettlement of the tin workers. This loan 
might have to be increased. 

Purchases of tin for dollars or barter by the Commodity Credit 
Corporation of wheat or some other agricultural product for tin 
at an increased rate for the national stockpiles currently seem out 
of the question. The stockpiles now contain a substantial surplus 



45 76 Stat 872 (1962). 



246 

of tin ingot and have been under close Congressional scrutiny. An 
increase of these holdings is excluded. 

On the other hand, the stockpiled tin might be used to place 
pressure on Gondomar by dumping part of the surplus to restrict 
his market either in the United States or in other countries. This 
might be done to the extent that it does not conflict with treaties, 
executive agreements, or other international obligations of the 
United States and does not damage the economy of the United 
States or a country to which the United States is friendly. 

Stockpiling Policy 

The United States maintains four 46 stockpiles or "inventories" 
of reserved strategic and critical materials deposited in various 
warehouses and depots throughout the country. As of 31 December 
1961, the acquisition cost of these materials was $8,708,672,700 and 
the estimated market value was $7,720,001,400. 

The materials are in the custody of the General Services Ad- 
ministration. Basic policies concerning acquisition and disposition 
of the materials are made pursuant to acts of Congress by other 
offices and agencies. 

Two of the stockpiles are subject to the policy control of the 
Office of Emergency Planning of the Executive Office of the 
President. These are the "National" or "Strategic" stockpile, the 
larger of the two, and the Defense Production Act (DPA) stock- 
pile. 

The National Stockpile is assembled and maintained pursuant to 
the Strategic and Critical Materials Stockpiling Act of 1946. 47 This 
stockpile is intended to obviate dependence by the United States 
upon overseas foreign sources for strategic or critical supplies 
during a limited or general war. A minimum stockpile objective is 
established for each stockpiled item upon the assumption that some 
imports will be available from overseas sources during a war. A 
maximum objective for each item is also established upon the 
assumption that overseas supplies are cut off but access exists to 
some supplies from nearby foreign sources. Military, atomic energy, 
defense support and critical civilian needs are included in the 
estimate. An emergency of three years is assumed. 48 



46 A fifth inventory, consisting wholly of tin, the remaining stock of tin 
refined while the United States operated the Texas City smelter, and held by 
the Federal Facilities Corporation, was liquidated in January 1962, and is not 
included in the estimates in this book. 

47 60 Stat. 496 (1946). This law superseded the earlier stockpiling act passed 
in 1939. 

48 Until 1958 the estimated emergency was 5 years. 



247 

The Defense Production Act Stockpile (DPA Stockpile) is ac- 
cumulated pursuant to the Defense Production Act of 1950. 49 While 
materials may be transferred from the DPA Stockpile to the 
National Stockpile if the President deems this action necessary in 
the public interest, the dominant Congressional intention in establish- 
ing the stockpile was to provide an incentive for the expansion of 
industrial capacity and raw materials sources through the pur- 
chase of materials. 

Policies for the National and DPA Stockpiles are established by 
the Office of Emergency Planning in Defense Mobilization Order 
V-7. The policies set forth in this Order, and any future policy 
changes, are formulated with the advice of interested government 
agencies channeled through an Interdepartmental Material Ad- 
visory Committee (IMAC). 

The Departments of Defense, State, Agriculture, Commerce and 
Interior, the General Services Administration, Agency for Inter- 
national Development and the National Aeronautics and Space 
Administration have representatives on IMAC. Observers attend 
from the Bureau of the Budget, the Atomic Energy Commission 
and the Small Business Administration. The Chairman of IMAC 
is from the Office of Emergency Planning. 

Purchases for the National and DPA Stockpiles are made by the 
General Services Administration in accordance with plans of the 
Office of Emergency Planning. For the National Stockpile purchase 
program, the items and amounts are stated in detail in the plan, 
with an indication of the amounts to be purchased in each fiscal 
year, the total amount to be purchased and the number of years 
required. Defense Production Act Program directives are less 
specific, indicating only the funds available for a resource expansion 
program and criteria for purchases. 

Withdrawals of materials from the National and DPA Stock- 
piles are also by the General Services Administration. The procedures 
are complex and are set forth both by Acts of Congress and in 
Defense Mobilization Order V-7 issued by the Office of Emergency 
Planning. 

The President may order withdrawals from the National Stockpile 
when, in his judgment, this is necessary for the "common defense" 
or "in time of war or during a national emergency with respect 
to common defense proclaimed by the President." These withdrawals 
may be for use, sale, "or other disposition." 50 



49 65 Stat. 801 (1950). 

50 60 Stat. 598 (1946) section 5. 



248 

This authority has been delegated by the President to the Office 
of Emergency Planning, to be exercised by the Director of the 
Office in releasing materials "in such quantities, for such uses, and 
on such terms and conditions'' as the Director determines "to be 
necessary in the interests of national defense." 51 The Attorney 
General has ruled that this power does not include authority to 
release gem diamonds in exchange for industrial diamonds on eco- 
nomic grounds alone when the common defense is not involved. 52 

Materials can be removed, however, to be upgraded or rotated 
with substituted materials to prevent loss through deterioration. 

When material in the National Stockpile is determined to be excess 
because of a revised determination of projected need, there can be no 
disposition until the Office of Emergency Planning gives it ap- 
proval. The operating plans for disposition are then prepared by 
the General Services Administration. Defense Mobilization Order 
V-7, paragraph 14, states that the Director of the Office of Emer- 
gency Planning will authorize the disposition when there can be 
avoided: serious disruption of the usual markets of producers, 
processors and consumers; adverse effects on the international inter- 
ests of the United States or upon domestic employment and labor 
disputes; and loss to the United States. 

If the removal from the stockpile is for a purpose other than 
direct use of a government agency, the Departments of Interior, 
Commerce, State, Agriculture, Defense, Labor and other govern- 
ment agencies and private industries concerned must be consulted. 
The Departments of State and Interior may be able to block the 
disposition if, within thirty days after consultation, they object to 
the plan. The disposition is halted if the Director of the Office of 
Emergency Planning concurs in the objection. If the Director does 
not concur, the matter must be referred to the President for decision. 

When the Office of Emergency Planning directs disposition of 
excess property from the National Stockpile, notice must be pub- 
lished in the Federal Register and notice must also be given to the 
Congress and to the Armed Services Committees of each House. 
The notices must state the reason for the revised determination, the 
item and amount to be released, the plan for disposition and the date 
upon which the material will become available for sale or transfer. 
No disposition can be made until six months after the date of each 
notice; and then not until the Congress by joint resolution has 
consented to the disposition. 



5i20 Federal Register 7637 (Oct. 11, 1955) ; 23 Federal Register 5061 (July 1, 
1958) ; 23 Federal Register 6971 (Sept. 8, 1958). 
52 41 Op. Att. Gen., April 27, 1954. 



249 

Congressional consent is not required if the revised determination 
is because the material to be released is obsolescent, is of no further 
usefulness or has deteriorated. The other requirements, such as 
notices and time intervals, are retained. 53 

Dispositions from the Defense Production Act Stockpile require 
no notice in the Federal Register or notice to the Congress. The 
consent of Congress is unnecessary and there is no waiting period. 
Public notice of the disposition is required by Defense Mobilization 
Order V-T, paragraph 15. This requirement is satisfied by a press 
release. 

Other requirements are the same as for dispositions from the 
National Stockpile. If the materials are resold, rather than used 
by the government agencies which look to the DPA stockpile for 
critical and strategic materials which they consume directly, the 
materials cannot be sold for less than the current domestic market 
price. 54 

A third inventory, the "Supplemental Stockpile" is controlled 
by the Department of Agriculture and the Office of Emergency 
Planning jointly. The Department of Agriculture determines the 
materials which go into the stockpile. These materials are obtained 
by the use of foreign currency acquired through the sale of surplus 
agricultural commodities pursuant to Section 104(b) of the Agri- 
cultural Trade Development and Assistance Act of 1954, 55 or by 
barter of surplus agricultural commodities pursuant to the Agri- 
cultural Act of 1956. 56 

Strategic or other materials acquired for barter must be placed in 
the Supplemental Stockpile "unless acquired for the National stock- 
pile * * * or for 'other purpose'." The "other purposes" are denned 
as "foreign economic or military aid or assistance programs, * * * 
offshore construction programs, or * * * the requirements of Govern- 
ment agencies." 

Approximately 90% of the strategic and other materials acquired 
by the Department of Agriculture have been by barter. The Depart- 
ment is assisted in selecting the materials and in determining prices 
by a Supplemental Stockpile Advisory Committee, having rep- 
resentatives from the Office of Emergency Planning, Departments 



53 A convenient exposition of these procedures with a collection of most of the 
relevant statutes and regulations may be found in Inquiry into the Strategic 
and Critical Material Stockpiles of the United States (Hearings before the 
National Stockpile and Naval Petroleum Reserves Subcommittee of the Com- 
mittee on Armed Services, U.S. Senate, 87th Cong., 2d Sess. Part 1, 1962). 

^64 Stat. 801 (1950) section 303; 65 Stat. 133 (1951) section 103(a). 

55 68 Stat. 456 (1954). 

se 70 Stat. 200 (1956) section 207. 



250 

of the Interior, Commerce, Treasury and State, the General Services 
Administration, Bureau of the Budget and Agency for International 
Development. The Department of Defense and Atomic Energy 
Commission have observers. 

Removals of materials from the Supplementary Stockpile are 
subject to the same limitations as removals from the National 
Stockpile. No statute expressly authorizes the President to order 
transfers of materials from the Supplemental Stockpile to the 
National Stockpile, although this authority may be implied from 
Section 4(h) of the Charter of the Commodity Credit Corporation 
as amended in 1949. 57 

This may be the only method of removal from the Supplemental 
Stockpile except for items determined obsolescent or obsolete. 

Section 3(e) of the Strategic and Critical Materials Stockpiling 
Act 58 has been interpreted to prevent authorizations by the Office 
of Emergency Planning for the disposition of materials determined 
to be in excess of needs. Section 3(e) refers to a "revised" determina- 
tion. By the administrative view there can be no "revised" deter- 
mination by the Office of Emergency Planning because the Depart- 
ment of Agriculture makes the initial determination to place the 
material in the stockpile. 59 Until this section is amended by the 
Congress or more liberally interpreted by the Office of Emergency 
Planning the Supplemental Stockpile appears to be a dead end for 
strategic and critical materials unless these are released by the 
President or the Office of Emergency Planning pursuant to the 
emergency power. 

Until strategic or critical materials obtained by the Department of 
Agriculture reach the National or Supplemental Stockpiles, the 
items are carried in a fourth inventory, described as the Commodity 
Credit Corporation or "Pipeline" Stockpile. The Commodity Credit 
Corporation is a corporate agency within the Department of Agri- 
culture and subject to the general supervision of the Secretary 
of Agriculture through a corporate board of directors and officers. 

The powers conferred upon the Corporation to dispose of its 
property, including strategic and critical materials, are quite gen- 
eral. Critical and strategic materials acquired by the Corporation 



57 63 Stat. 154 (1949) section 2 (amending section 4(h) of Commodity Credit 
Corporation Charter Act). 

s8 60 Stat. 496 (1946). This law superseded the earlier stockpiling act passed 
in 1939. 

69 See Inquiry into the Strategic and Critical Materials Stockpiles of the 
United States (Hearings Before the National Stockpile and Naval Petroleum 
Reserves Subcommittee of the Committee on Armed Services, U.S. Senate, 87th 
Cong., 2d Sess. Part 4, 1962), 1014-1015; 1351-1352. 



251 

by barter must be for the National Stockpile, the Supplemental 
Stockpile, for foreign economic or military aid or assistance pro- 
grams, for offshore construction programs, or "to meet the require- 
ments of government agencies/' 60 

There seems no legal obstacle to a release of items held in the 
"Pipeline" Stockpile upon Presidential order or simply when a 
"government agency" needs the materials and can reimburse the 
Commodity Credit Corporation. No Congressional action or waiting 
period need be involved nor need there be public notice of the release. 

Currently available from the stockpiles are 58,000 long tons of 
refined tin ingot. The Congress has authorized disposition of 50,000 
long tons of this amount from the National Stockpile. 

With respect to tin from this stockpile, however, the President 
is committed not only to consultations with Bolivia and other tin 
producing countries before sale but also to a scheme of sale which 
will avoid depressing the international market price of tin. 61 There 
is no similar commitment concerning the 8,000 long tons of refined 



60 Barter of agricultural commodities for strategic and other materials not 
subject to rapid deterioration commenced in 1950 pursuant to the 1949 amend- 
ment to the Commodity Credit Corporation Charter. 63 Stat. 154 (1949) section 
2. About $107,000,000 in strategic and critical materials were acquired between 
1950 and 1954. The Agricultural Trade Development and Assistance Act of 1954, 
68 Stat. 454 (usually called P.L. 480) created the Supplemental Stockpile as a 
place for deposit for materials received in exchange for foreign currencies. The 
Agricultural Act of 1956, 70 Stat. 200 (1956) section 206 authorized transfer 
of bartered materials to the Supplemental Stockpile. The general dispositive 
power of the Commodity Credit Corporation from the Pipeline Stockpile rests 
upon 73 Stat. 611 (1959) section 204 and 70 Stat 200 (1956) section 206. 

61 See 45 Department of State Bulletin, 112 (1961). The President's message 
to the President of Bolivia states in part : 

* * * The course of action which we have suggested is the sale of small 
lots of tin over a period of several years. This tin would come from the 
50,000 tons which we now have in excess of our strategic requirements. 
We do not intend to depress the price of tin through these sales; they 
would be initiated at a time of world-wide shortage and would have the 
effect of discouraging tin consumers from substituting other materials for 
their normal tin consumption. In this way we can protect the long-run 
stability and continued prosperity of the tin market. * * * 
The United States commenced a trial plan for the disposition of a maximum 
200 tons per week in September 1962. About 30 tons of this was used in foreign 
aid programs and about 10 tons for use by U.S. Government agencies. 

In the disposition of the remaining weekly quota, GSA accepted only bids 
reasonably consistent with prevailing market prices and regulated sales to 
avoid depressing the market prices. After consultation with a delegation of the 
International Tin Council and major tin producing states the interim program 
was extended during the first quarter of 1963. See 47 Department of State 
Bulletin, 386 (1962) ; 47 Department of State Bulletin, 1012 (1962) ; 48 Depart- 
ment of State Bulletin, 182 (1963). 



252 

ingot in the Pipeline Stockpile. In a disposition of this surplus tin 
the Bolivian economy would have to be safeguarded. 

Dumping Tin in AntioJcan Markets 

It is therefore possible to take advantage of the publicity and 
state of apprehension of tin producers stemming from the Con- 
gressional authorization for disposition of the 50,000 long tons of 
refined tin ingot in the National Stockpile by proposing to Gondomar 
that unless he ceases his supply of Salvaje all or part of the tin 
in the Pipeline Stockpile will be dumped in Antiokan tin markets. 
A proposal to dump this surplus tin only in the United States 
markets of Antioka should place sufficient pressure upon Gondomar 
to obtain the decision desired. 

An unpublicized statement of intention, coupled with disclosure to 
Gondomar of the speed of action possible under United States law, 
are desirable for maximum effect. If the plan proposed to Gondomar 
must be executed to apply the requisite pressure, collateral action will 
then be necessary to protect the Bolivian economy and to avoid 
damage to the tin miners of Antioka. 

The advantages in a plan of economic warfare involving dumping 
refined tin ingot from the Pipeline Stockpile are: (1) Speed, 
domestic law requiring no appreciable delay; (2) Direction, Gon- 
domar's personal financial interests in the Antiokan tin industry 
being at stake; (3) Adequate ambit of arrest, the side effects of the 
sortie being subject to offset by the use of foreign aid; and (4) 
Adequate sustentive range, there being no apparent obstacle to 
further action which might be taken against Gondomar if the action 
contemplated proves ineffective. 

Although the United States has cooperated with the International 
Tin Council in maintaining tin prices, the United States is not a 
party to the International Tin Agreement of I960. 62 In the "Sugar 
Encounter" with Cuba, discussed in Chapter II, freedom of action 
by the United States was restricted because of its participation in 
the International Sugar Agreement of 1948. 63 

For example, if the United States were a party to the International 
Tin Agreement of 1960, it would be required to give six months' 
public notice before it disposed of a noncommercial stock of tin. 64 
The requirement is to protect consumers and producers from avoid- 
able disruption of their usual markets. A provision similar to this 



62 E/CONF.32/5. Second International Tin Agreement, United Nations Tin 
Conference, Summary of Proceedings (1960) 25. 

63 10 TIA8 2189 (1959). 

64 The Tin Council may consent to reduction of the notice period. 



253 

is incorporated in the United States domestic law for dispositions 
from the National Stockpile; but the United States has assumed 
no general international obligation to avoid rapid dispositions or to 
give advance notice of transfers of tin from all of its stockpiles. 
Had such an obligation been assumed, the speed required for an 
effective economic sortie against Gondomar probably could not be 
developed. 

It is possible, of course, that if the United States were a party 
to the International Tin Agreement of 1960 an exception might be 
found to permit action with the necessary speed. Article XVI (1) (b) 
of the Tin Agreement, for example, permits a participating country 
to take any action "singly or with other countries" which it con- 
siders necessary to protect its essential security interests when such 
action "relates to traffic in arms, ammunition or implements of 
war. * * *" 

In this instance action by the United States is to interrupt trade 
in military supplies between Antioka and an insurgent in Nueva 
by bringing pressure upon Gondomar who is the person who can 
make the decision to bring the traffic to an end. A strong argument 
may also be offered that the traffic in arms affects the essential 
security interests of the United States and other countries of the 
Western Hemisphere. 

The existence of a viable International Tin Agreement, on the 
other hand, creates a market environment which favors action by 
the United States against Gondomar. The impact of action by the 
United States upon Gondomar may be reduced to a degree because 
if the action affects the world-market price to such an extent that 
the price falls within "the lower sector of the range between the 
floor and ceiling prices" established by the Agreement, the Manager 
of the buffer stock may buy cash tin on the London Metal Ex- 
change. 65 The Tin Council can also establish "control periods" 
during which maximum export amounts are established in order 
to maintain prices. 66 

Action of this nature pursuant to the Agreement may work to 
the advantage of Gondomar. At the same time, action by the United 
States is favored because the existence and effective operation of 
a price control regime will tend to damper price repercussions 
other than in the United States markets of Antioka. The Agree- 
ment is a "cushion" which tends to extend the ambit of arrest of the 
side effects of manipulations of the tin trade in economic warfare. 



65 Second International Tin Agreement, Art. IX (2) (d). If the price is in the 
"middle sector of the range" as defined by the Agreement, the Manager cannot 
buy unless the Tin Council makes the decision. 

™Ibid., Art. VII (2) (a). 



254 

The GATT 67 does not appear to limit action by the United States 
to restrict the Antiokan tin market by disposing of all or part 
of the surplus tin in the Pipeline Stockpile. Currently there is no 
tariff or tax on tin, although if a discriminatory tax or tariff should 
be proposed as a measure to be taken against Gondomar, this action 
would have to be justified under one of the exceptions which GATT 
provides. 68 

The only GATT provision concerning dumping commodities from 
a National Stockpile is contained in Article XX(ll) (c). This pro- 
vision is applicable to stockpile surpluses accumulated as a result 
of World War II, a deadline of January 1, 1951, being established 
for liquidation of these holdings, with a stipulation for extension 
of the time in certain cases. Tin accumulated during World War II 
is held in the National Stockpile; but the tin in the Pipeline Stock- 
pile was acquired after World War II by the barter of surplus 
commodities. 

The action which the United States, as a party to GATT, might 
take against the Marshall bears an analogy to the routine con- 
temporary market operations of the "state trader." A state trader 
enjoys a competitive advantage over private rivals in foreign trade 
because of its ability to undersell. 

Article XVII of GATT is the provision aimed at state trading 
enterprises. This obligates the state trader to "act in a manner con- 
sistent with the general principles of nondiscriminatory treatment" 
prescribed in the Agreement "for governmental measures affecting 
imports or exports by private traders." The state trader must also 
"make any such purchases or sales solely in accordance with com- 
mercial considerations, including price, quality, availability, market- 
ability, transportation and other conditions of purchase of sale, and 
shall afford the enterprises of any other contracting parties adequate 
opportunity, in accordance with customary business practice, to 
compete for participation in such purchases or sales." 

The Interpretative Notes 69 state marketing boards engaged in 
purchasing or selling are subject to the provisions of Article XVII. 
Paragraph 2 of Article XVII states, however, that restrictions in 
the Article do not apply to imports of products for immediate or 
ultimate consumption in governmental use and not for resale or for 
use in the production of goods for sale. 

Two criteria thus appear to condition application of Article XVII : 
(1) Is the state actively engaged in competition with private enter- 



«7 61 Stat. Part 5, A-ll (1947). 

68 Ibid., Art. XX (General Exceptions) ; Art. XXI (Security Exceptions). 

«> 61 Stat. Part 5, A-89 (1947). 



255 

prise in the trade in question? (2) Was the commodity in question 
obtained to place it on the market in competition with private entre- 
preneurs? With respect to activity of the Commodity Credit Corpo- 
ration in obtaining tin by barter for the Pipeline Stockpile, both 
questions must be answered in the negative. The tin in question was 
imported for governmental use, the bulk being received in barter for 
other commodities. The tin has become available for disposition 
only after a bona fide redetermination of the strategic requirements 
of the United States for this metal. 

If GATT should be construed to apply to the measures contem- 
plated against Gondomar, the United States might invoke the 
security exception upon which the exception in the International 
Tin Agreement was substantially modeled. This exception permits a 
contracting party to take action which it considers necessary for the 
protection of its essential security interests " * * * relating to the 
traffic in arms, ammunition and implements of war and to such 
traffic in other goods and materials as is carried on directly or indi- 
rectly for the purpose of supplying a military establishment * * *." 70 

If the United States proposes action to disrupt Gondomar's market 
for tin in the United States, or undertakes this action with a view to 
interrupting the arms trade with Salvaje, there appears to be no 
violation of the Charter of the Organization of American States or 
of the Charter of the United Nations. Neither charter precludes all 
economic action of a coercive nature. 

Athough Article 16 of the OAS Charter prohibits the use of coer- 
cive measures of an economic character to force the will of another 
state, this "forcing" is prohibited only when "unilateral advantages" 
of any kind are sought. There is no prohibition of economic action to 
frustrate an intervention of the type prohibited in Article 15; and 
Gondomar is intervening in Nuevan internal affairs in violation of 
this Article. 

A constriction of the market for Antiokan tin in the United States 
is a "peaceful" means of action, analogous as previously indicated 
to practices habitually employed by the "state trader." The United 

70 61 Stat. Part 5, A-63 (1947) Art. XXI. Other security demands excepted 
relate to fissionable materials or the materials from which they are derived, 
action taken in time of war or other emergency in international relations, and 
action taken pursuant to the obligations of a state under the UN Charter for 
the maintenance of international peace and security. It is possible that action 
by the United States against Gondomar might also be justified under the latter 
two exceptions. The "military establishment" mentioned in Article XXI (ii) is 
not further elaborated in the interpretative notes. There is nothing in the 
Article which clearly restricts the words to the "military establishment" of the 
state which takes action otherwise in violation of the GATT but permissible 
under the exception. 



256 

States action proposed against Gondomar is to secure "international 
peace, security and justice" rather than to endanger these aspirations 
as mentioned in Article 2(3) of the United Nations Charter. No threat 
or use of force is made against the territorial integrity or political 
independence of Antioka as mentioned in Article 2(4) ; and it is 
consistent with the purposes of the United Nations to maintain the 
status quo politically until a dispute of a peculiarly dangerous nature 
can be considered by the Organ of Consultation of the Organization 
of American States. 

Manipulation of Trade in 
Wheat, Textiles and Hard Goods 

In contrast to the proposed manipulation of the Antiokan tin 
market in the United States, manipulations of the trade with Antioka 
in wheat, textiles and hard goods are subject to several of the diffi- 
culties observed in manipulations of foreign aid in economic warfare. 

The effect upon the critical decision maker (Gondomar) may be 
indirect, the ultimate effect upon the Marshal requiring more time 
than can be reasonably considered for expenditure under the circum- 
stances. A reduction in exports of wheat to Antioka, and possibly 
an embargo on other shipments as well, are likely to strike at con- 
sumer groups within Antioka lacking access to political channels 
through which Gondomar can be influenced. 

A reduction in exports of textiles or hard goods might affect indus- 
trial interests in Antioka. The persons affected by this reduction 
would be likely to have more influence upon Gondomar than would 
agricultural, mining or industrial workers deprived of wheat. Gon- 
domar might be affected personally by blocking trade in textiles or 
hard goods. But the impact of trade restrictions upon these articles 
clearly will have a delayed effect which manipulations of the Antio- 
kan tin trade will avoid. 

The ambit of arrest of the side effects of manipulations of the 
trade in wheat, textiles and hard goods also will be limited. No wave 
of sympathy is ever generated, and positive hostility is usually pro- 
voked, by denials of food to people who need it. When economic war- 
fare is used as a secondary policy device (supporting the use of 
physical violence) denials of food to persons by means of a blockade 
or preemption of supplies are sometimes grudgingly tolerated. These 
food denials, on the other hand, are almost never forgotten and tend 
to taint interstate relations for generations. 

When economic warfare is used as a primary policy device, the 
flow of food and medical supplies to a target state should not be 
manipulated. Humanitarian considerations are a sufficient justifica- 



257 

tion. But if a policy maker is not swayed by these, he may be per- 
suaded by the threat of the future communications barrier which 
food denials tend to erect. 

The side effects of manipulations of the trade in textiles and hard 
goods are likely to be paramount within the industrial establishment 
of the exporting state. While reductions in wheat exports may be 
compensated in the United States by government purchases of wheat 
surpluses, the impacts upon textile and hard goods industries when a 
foreign market is disturbed are likely to be severe. 

It is difficult to maintain an internal stable price and income struc- 
ture and regularly paced production when the government concerned 
does not also seek to avoid violent gyrations in foreign trade. The 
internal effect of violent external economic disturbance can be les- 
sened when the internal economy is fully state controlled as in the 
Soviet Union. But where state control is partial, as in the United 
States, external economic disturbances, whether intended or not, dis- 
turb the internal economy of the acting state. 

The sustentive range of economic action by manipulations of the 
trade in wheat, textiles and hard goods is also limited. If the trade 
in wheat is interrupted, Antioka may turn to the International Wheat 
Council for supplies of wheat pursuant to Article 11(1) of the Inter- 
national Wheat Agreement of 1962. 71 This demand could be satisfied 
unless there was a significant international wheat shortage, although 
there might be a supply hiatus due to the shipment time from sources 
other than the United States. The wheat reserves in Antioka might 
be sufficient to bridge this time gap. 

Antioka also might turn to the Soviet Union or Scythia for its 
trade in textiles and hard goods and ultimately reorient its markets. 
Gondomar could certainly bring pressure to bear upon American 
manufacturers denied access to Antiokan markets ; and these persons 
in turn could bring force to bear upon the Executive Branch and 
Congress to erode an economic warfare policy designed to disrupt 
Gondomar's trade with Salvaje. Additional supporting action which 
appeared necessary against Gondomar might prove awkward because 
of this reciprocal pressure. 

From a legal viewpoint, there are no domestic objections to manip- 
ulations of the trade in wheat, textiles or hard goods. This trade 
can be interrupted under the Export^ Control Act of 1949 72 or under 
Section 5(b) of the Trading With the Enemy Act of 191T. 73 But the 



™TIAS 5115 (1962). 

7 2 63 Stat. 7 (1949). 

73 40 Stat. 411 (1917) ; 54 Stat. 179 (1940). The Export Control and Trading 
With the Enemy Acts were discussed in detail in Chapter II. 



258 

United States may encounter an international legal obstacle in ma- 
nipulating the trade in wheat. 

Under the International Wheat Agreement of 1962, 74 to which the 
United States and Antioka are parties, datum quantities of wheat 
are established for each crop year by the International Wheat Coun- 
cil for each exporting state (the United States) with respect to all 
importing countries (Antioka). The International Wheat Council 
may, in its discretion, require exporting and importing countries to 
cooperate to insure the availability for purchase by importing coun- 
tries after January 31st of each crop year of an amount of wheat 
equal to not less than 10% of the datum quantities of exporting 
countries for any crop year. Although the United States has votes 
as a member of the Council, it is not a free agent in manipulating 
its exports of wheat. 

There is no security exception in the International Wheat Agree- 
ment of 1962 similar to the exception in the International Tin Agree- 
ment of 1960. The only provision relative to security permits an 
exporting or importing state to withdraw from the Agreement if it 
"considers its national security to be endangered by the outbreak of 
hostilities." 75 The state concerned must give thirty days written 
notice of its withdrawal to the United States or must apply to the 
International Wheat Council for a suspension of its obligations 
under the Agreement. The United States is depository state for 
ratifications, accessions and withdrawals. 

The combined defects of indirection, limited ambit of arrest and 
limited sustentive range suggest manipulations of the trade with 
Antioka in wheat, textiles and hard goods may mature into a fruitless 
policy of protracted harassment, A policy of protracted harassment, 
would induce no decision of the nature which Gondomar is desired 
to make; would expend too much time; might drive Antioka to 
other sources of supply; and might prove injurious to the economy 
of the United States. These alternatives on the whole appear less 
desirable than manipulations of foreign aid, and certainly appear 
less desirable than operations against the Antiokan tin market in 
the United States. 

Suggested Solution: Situation 5 

There should be no assumption that a wealth weapon is the most 
desirable policy device to induce Gondomar to interrupt his trade 
with Salvaje. But if a wealth weapon is selected, the first United 
States move should relate to the Antiokan tin market. 



™TIAS 5115 (1962), Art. 17(5) 
™Ibid., Art. 36(7). 



259 

This appears to be the only area for wealth pressure in which the 
effect upon Marshal Gondomar will be immediate rather than indi- 
rect. A quick impact can therefore be anticipated. The existence of 
the Buffer Stock maintained pursuant to the International Tin 
Agreement of 1960 will insure a degree of price stability in the world 
market and provide an acceptable ambit of arrest of the side effects 
of use of the weapon contemplated. The sustentive range seems ade- 
quate, foreign aid manipulations in particular being available to 
follow-up action upon the tin market if supporting action becomes 
necessary. 

As a first step in the program of economic warfare, Gondomar 
should be informed privately that his tin market in the United 
States will be disrupted unless he ceases his assistance to Salvaje. 
Facts should be placed before him to insure that he appreciates these 
features of his environment: (1) The current conditions of the 
world tin market; (2) The importance to him of his United States 
market; and (3) The speed with which United States officials can 
move to disturb his market under domestic and international law. 

It is probable that Gondomar will cease his support of Savaje 
when he appreciates the directness and speed with which the United 
States is prepared to move. If, however, the Marshal does not make 
the desired decision promptly, refined tin ingot should be withdrawn 
from the Pipeline Stockpile and sold to his United States customers 
at prices below any the Marshal can offer. 

The United States must be prepared to cease these withdrawals 
and sales on short notice and to support the economies of friendly 
countries injured by these sales. In aid to Antioka care should be 
taken to avoid compensating aid to Gondomar. Payments to the 
Commodity Credit Corporation for the tin withdrawn should be 
made from unearmarked funds appropriated for foreign aid and 
other purposes. 

B. NAVAL INTERDICTION OF SUPPLY LINES IN SUPPORT OF 
DIPLOMATIC ACTION 

Situation 6 

After the conference in Situation 5, in which our Naval Com- 
mander at Coloso participated, our Minister to Antioka submitted 
his report and recommendation to the Department of State. There- 
after the Minister was instructed to request an immediate meeting 
with Marshal Gondomar. 

On the day following this meeting, REVAKMCO was dissolved 
by its stockholders. Its assets were sold by sealed bids. The Antiokan 
Government was sole bidder. 



260 

At its meeting requested by Cortez, the Council of the Organiza- 
tion of American States, acting provisionally as an Organ of Con- 
sultation, appointed an investigating committee for an inspection 
on the spot. 

Members of this Committee and its staff were excluded by Salvaje 
from Luna Mountain areas occupied by the PDS Army. Based upon 
the only observations possible, the Committee reported no further 
activity by Gondomar in Nueva. 

The Committee estimated Scythian personnel supporting PDS 
forces at approximately 1,000. Scythia was said to have placed much 
equipment, including 14 trawlers manned by Scythian personnel, at 
Salvage's disposal. 

During the Committee investigation, and while military action in 
Nueva was at a standstill, Cortez, in a radio and television address 
from Dolores, announced he and his Cabinet had resigned for the 
welfare of the people of Nueva and to avoid further internal conflict. 
He urged his listeners not to resist movement of the PDS forces to 
Dolores. 

On the next day Salvaje flew to Dolores and took office as Provi- 
sional President. He promised future popular elections. Cortez and 
his Cabinent were arrested. Numerous officers of the Nuevan armed 
services have been dismissed. 

Due to the puzzling circumstances of the Cortez collapse, our Min- 
ister to Nueva was recalled for consultation. He has presented to the 
National Security Council the following facts. 

On 25 November, shortly before the resignation of Cortez, General 
Valens, a Nuevan national, recently returned from Scythia and now 
Chief of Staff of the PDS Army, met with the Nuevan Ministers of 
Defense and Health under a flag of truce. Valens informed these 
officials that Scythian biological warfare units supporting the PDS 
Army would commence action against Nuevan Armed Forces and 
the civilian population controlled by the Cortez Government. If 
Cortez and his Cabinet resigned by midnight, 27 November, and 
supported Salvaje's assumption of office as Provisional President no 
biological warfare would be commenced. 

The two Ministers accompanied Valens to the Luna Mountain 
area. There they observed aerosolizing equipment emplaced in bomb- 
proof shelters and mounted on Scythian trawlers in adjacent waters; 
stockpiles of aerosolized pneumonic plague bacilli, sulfadiazine, 
respirators and protective clothing; and prisoners from the jail at 
Patricio, who had been exposed to aerosolized pneumonic plague 
bacilli. 

The Ministers reported to Cortez. At a meeting of Cortez and his 



261 

Cabinet with the commanders of the Nuevan Armed Forces it was 
concluded that air strikes with conventional explosives could not 
destroy sufficient biological warfare munitions to forestall the 
threatened attack. Nuclear weapons were not available. 

The weather forecast for three weeks favored a biological attack 
launched by aerosols from the Luna Mountains or adjacent coastal 
areas in the direction of Dolores. Supplies of sulfadiazine could not 
be obtained and distributed, nor could an immunization program 
be completed, in time to avoid massive casualties. 

Under these circumstances, President Cortez and his Cabinet 
decided to capitulate and resign. 

During this meeting with the United States Minister to Nueva, the 
National Security Council considered also these intelligence items 
derived from reliable sources. 

(1) In return for support given him by Scythia, Salvaje has 
agreed to Scythian use of Farrago Island, a Nuevan possession fifteen 
miles off its coast, as a proving ground for biological munitions. He 
has also agreed to permit Scythia to stockpile biological munitions 
useful in economic warfare (against livestock and crops) in the Luna 
Mountains. These stockpiles are to remain under Scythian control. 

(2) Experiments are being conducted by Scythia on Farrago with 
an aerosolized yellow fever virus. The aerosol technique bypasses 
the mosquito as a vector and permits effective use of the munition in 
temperate or cold climates in any season. 

(3) Seven Scythian trawlers, equipped with aerosolizing nozzles, 
have been observed by naval air and submarine patrols conducting 
attack delivery maneuvers at ranges of from 250 to 300 miles off the 
Virginia and Maryland coasts. It is estimated that Scythia can 
deliver biological warfare materials in aerosols with favorable winds 
at ranges of from 500 to 600 miles. 

(4) On 8 December, experiments were conducted by a Scythian 
trawler off Farrago with aresolized Melioidosis-B. Melioidosis, caused 
by the bacillus malleomyces pseudomallei, is similar to glanders but 
has a higher fatality rate. Melioidosis was first observed in the Orient 
and approximately 400 cases have been reported since the disease 
was identified. 

Melioidosis-B, a mutant of Melioidosis, was developed by Scythia 
for use against livestock in economic warfare. The 50% lethal dose 
(LD 50 ) is believed to be 23.5 bacilli. Death results in approximately 
six hours after infection. 

The trawler delivered Melioidosis-B from an average range of five 
miles during a run of approximately ten miles. All sheep on Farrago, 
placed there for the experiment, received a lethal dose. Although 
Scythia had considered the lethal effect of Melioidosis-B limited to 



262 

livestock, one hundred and thirty Amerindians, the only humans on 
the Island, also died. 

Aerosol delivered by the trawler was wind borne over parts of 
Nueva, Cases of Melioidosis-B in humans and livestock have been 
reported unofficially, although Salvaje has attempted to suppress this 
information. Antioka, also in the aerosol path, has reported several 
suspected cases of Melioidosis-B in humans and livestock to the Pan 
American Sanitary Bureau and the World Health Organization. 
Cultures taken from these suspected cases are being examined in the 
Pan American Zoonoses Center in Azul, Argentina. 

Based on these facts, the President alerted the United States 
Public Health Service and the Department of Agriculture and or- 
dered close naval surveillance of Scythian trawlers operating in the 
Caribbean and in waters off the eastern coast of the United States 
within biological striking range by wind-borne aerosols (600 miles). 

During the month following this meeting of the National Security 
Council, United States intelligence agencies reported a regular and 
heavy flow of biological warfare equipment and personnel from 
Scythia to Nueva by sea and air. These shipments included pneu- 
monic plague and Melioidosis-B biological warfare munitions. 

Aerosolized yellow fever virus has been perfected by Scythia in 
Nueva and is now being stockpiled there. The Scythian biological 
warfare stockpiles, have been dispersed in caves and underground 
shelters and probably are secure against nuclear attack. These stock- 
piles remain under Scythian control. Forty-six Scythian trawlers, 
carrying aerosolizing equipment, now operate out of Nuevan ports. 

On 16 May, Marshal Gondomar, President of Antioka, informed 
the Chairman of the Council of the Organization of American States 
that on the night of 10 May units of the Nuevan Navy, supported 
by Scythian biological warfare specialists, commenced biological war- 
fare against Antioka by dispensing contaminated aerosols from sur- 
face vessels. Pneumonic plague, Melioidosis-B and yellow fever have 
thus far been unidentified. The presence of Nuevan vessels was 
detected by radar. No defensive action was taken because the attack 
was not discovered until massive outbreaks of the diseases occurred. 

At the time of his message to the Chairman of the Council, 
Marshal Gondomar ordered the Antiokan air force to sink all 
Nuevan naval craft and Scythian trawlers within striking range by 
aerosols (600 miles) of Antioka. He requested the assistance of 
members of the Organization of American States to meet an armed 
attack pursuant to Article 3(2) of the Inter- American Treaty of 
Reciprocal Assistance (Rio Pact). He also requested an immediate 
meeting of the Organ of Consultation pursuant to Articles 3(2) and 
6 of this Treaty. 



263 

The Council of the Organization of American States, acting provi- 
sionally as an Organ of Consultation, debated Marshal Gondomar's 
charge for six days. Salvaje has denied any attack with biological 
weapons was launched. Gondomar's charge has been confirmed by 
reports from Coloso, and Nuevan troops and landing craft have 
assembled in Nuevan ports. 

Influential members of the Organization of American States be- 
lieve the outbreaks of disease in Antioka may be due to Scythian 
experiments at Farrago or to Marshal Gondomar's own experiments, 
which he is believed to have undertaken. For this reason the Organ 
is not prepared to approve unilateral measures of military support 
for Antioka or collective measures under Article 2(2) of the Rio 
Pact. 

The Organ also has failed to conclude under Article 6 that an 
aggression "which is not an armed attack" has occurred. A situation 
which might endanger the peace of America has been found. The 
Organ is thus prepared to call upon "the contending states to suspend 
hostilities and restore the status quo ante bellum." 

Hostilities, in fact, are in a stalemate since all of the Antiokan air- 
craft which sortied against Nuevan naval units and Scythian trawlers 
have been destroyed. Marshal Gondomar is unwilling to risk his 
surface vessels and single submarine. Medical teams and supplies 
have been sent to Antioka by the United States and other members of 
the Organization of American States. 

Under these circumstances, the President of the United States has 
received a letter from the President of Scythia, which states that 
Scythia, supporting Salvage's demand for abandonment by the 
United States of its Naval Base at Coloso, is restraining with diffi- 
culty the Nuevan Navy from attacks upon the continental United 
States. Scythia cannot guarantee the effectiveness of these restraints 
so long as the threat to Nuevan security posed by the United States 
Naval Base at Coloso continues. 

It is known Salvaje desires abandonment of the base at Coloso to 
insure the success of any attack which he launches against Antioka. 
The only threat which the Nuevan Navy could offer to the conti- 
nental United States is a threat to attack with biological weapons. 
These weapons can be obtained only from Scythian personnel and 
can be delivered in substantial quantities only with Scythian 
equipment. 

On 22 May, a Scythian dispatch to the senior Scythian officer in 
Nueva was disclosed to United States intelligence personnel. This 
message stated: "Execute Plan CHOLERA 022400 June." Plan 
CHOLERA is known to embrace release to Nuevan control of 
biological warfare materials together with trawlers and aircraft 



264 

equipped to deliver these materials in aerosols. The Plan also includes 
provision of Scythian biological warfare personnel to act under 
Nuevan orders. 

The National Security Council has grounds for believing Scythia 
is encouraging Salvaje to make a biological warfare attack upon the 
eastern coast of the United States. If such an attack is delivered 
by a small number of vessels at night, it is likely to be approximately 
one week before medical diagnostic procedures can verify an attack 
has occurred. 

Scythia can then place pressure upon the United States to give up 
the Base at Coloso by offering to withhold biological warfare mate- 
rials from Nueva in return for this concession; or can force the 
United States into an attack upon Nueva at a time when the Organ 
of Consultation of American States is not convinced that the out- 
breaks of disease are due to intentional biological attacks. 

To forestall the necessity for an attack upon the biological stock- 
piles and delivery means in Nueva with ultradecisive weapons, the 
National Security Council will recommend to the President that 
naval action be taken to interdict the traffic to and from Nueva in 
biological warfare munitions and equipment and to exclude the 
movement from and into Nuevan territorial waters and airspace of 
vessels or aircraft equipped for dispensing contaminated aerosols. 
This draft proclamation is now being considered. 

A PEOCLAMATION 

Whereas the peace of the world and the security of the United 
States are threatened by the establishment in Nueva by Scythia of 
stockpiles of biological warfare munitions and facilities for their 
clandestine delivery ; 

Whereas these munitions have been used against Antioka by Nueva 
in violation of the obligations of Nueva assumed under the Charter 
of the United Nations, the Charter of the Organization of American 
States and the Inter- American Treaty of Reciprocal Assistance ; and 
by Scythia in violation of its obligations assumed under the Charter 
of the United Nations; and by both Nueva and Scythia in violation 
of minimum standards of humanitarian conduct accepted by civilized 
nations ; 

Whereas on this date the Government of the United States has 
placed before the Security Council of the United Nations its com- 
plaint that Nueva and Scythia have threatened a breach of the peace 
and contemplate an armed attack with biological weapons to coerce 
the United States to terminate its viable treaty with Antioka, provid- 
ing for United States naval facilities at Coloso, Antioka; 



265 

Whereas an attack by unknown biological munitions cannot be 
met by conventional defensive measures of the type contemplated by 
Article 51 of the United Nations Charter ; 

Whereas it is necessary to preserve the statics quo of biological 
warfare munitions and means for their delivery in Nueva pending a 
peaceful resolution of the issue presented in the complaint of the 
United States by the Security Council or other organs of the United 
Nations or by other diplomatic processes; 

Whereas it is also necessary to procure current information re- 
quired for peaceful settlement of this dispute pending reception, 
free access to information and effective functioning of a United 
Nations Commission of Inquiry or other independent commission of 
inquiry within the territory of Nueva ; 

Now, Therefore I , President of the United 

States of America, acting pursuant to authority conferred upon me 
by the Constitution and statutes of the United States, in accordance 
with obligations assumed by the United States as a party to the 
Charter of the United Nations, the Charter of the Organization of 
American States and the Inter- American Treaty of Reciprocal 
Assistance, and to defend the security of the United States, do 
hereby proclaim that all forces under my command are ordered, 

beginning at Greenwich time, June 19 , to establish a zone 

of surveillance on the high seas and superjacent airspace in the 
region denned by Article 4 of the Inter- American Treaty of Recipro- 
cal Assistance, and to interdict within this zone such biological war- 
fare munitions and facilities for their delivery as shall be denned by 
the Secretary of Defense and transmitted by the Secretary of State 
to all nations maintaining sea or air transport services or both. 

The Secretary of Defense shall take appropriate measures to inter- 
dict prohibited material and equipment, employing the land, sea and 
air forces of the United States in cooperation with any forces made 
available by members of the United Nations. 

The Secretary of Defense may make such regulations and issue 
such directives as he deems necessary to ensure the effectiveness of 
this order, including the designation of special restricted zones and 
routes for surface, subsurface or air transit within the zone herein 
indicated. 

Any vessel, surface or subsurface, or aircraft within the zone 
herein indicated, as further denned by the Secretary of Defense, may 
be intercepted, required to identify itself and disclose its cargo, 
equipment, stores and ports of call and may also be required to stop, 
lie to, surface, land and submit to visit and search. Vessels or air- 
craft may be diverted for visit and search to such reasonable places 



266 

at which an effective health quarantine can be established as may be 
designated by the Secretary of Defense. 

In carrying out this order, force shall not be used except for self- 
defense and to require compliance with my directions herein or with 
the regulations or directives of the Secretary of Defense issued here- 
under after reasonable efforts have been made to communicate them 
to the vessel or aircraft. Force shall be used in any case only to the 
extent necessary. 

The United States, Scythia, Antioka and Nueva are members of 
the United Nations and the World Health Organization. The United 
States, Nueva and Antioka are also members of the Organization 
of American States, parties to the Inter-American Treaty of 
Reciprocal Assistance and to other general treaties and agreements 
forming the Inter- American System, including the Pan American 
Sanitary Code of 1924 and the Pan American Health Organization. 

You are examining the draft proclamation with a view to sug- 
gesting changes to insure its effective execution by naval forces. 
As part of this examination you are considering the legality of action 
by naval forces in international law pursuant to the proclamation 
and regulations and directives of the Secretary likely to be issued 
thereunder. Do you think the draft proclamation requires revision? 
If revision is required, what revisions would you suggest and why? 

Discussion : Situation 6 

1. Law and Biological Warfare: Tentative Analysis of Facts 

Although the United States, the Soviet Union and other major 
powers are equipped to wage biological warfare, and states with 
modest physical resources can marshal a host of germs and germ 
carriers to be used for military purposes, the legal problems attend- 
ing future widespread uses of biological weapons are conjectural. 

No great attention until the past decade has been given to the law 
of bioligical warfare. 76 This has been due in part to a tendency to 
confuse biological with chemical weapons. 

These devices have different physical characteristics, techniques 
of employment and incidence of general risk. It has been tacitly 
assumed that legal problems arising from the use of chemical 
weapons will arise from the use of biological weapons as well. 
Effective military biological weapons also are recent innovations. 

Past uses of biological weapons have been sporadic, usually by 
imaginative and resourceful local commanders, who could perceive 
advantages provided by nature, such as smallpox or plague victims 



76 See Neinast, "United States Use of Biological Warfare" 24 Mil. L. Rev., 1, 
9 (1964) (DA Pam 27-100-24, 1 April 1964). 



267 

to be directed into the camp of a susceptible enemy. Opportunities 
for advance planning to employ biological weapons against an 
attacker or defender were slight, although these opportunities are 
now provided by development of militarily effective mutations of 
biological pathogens. Furthermore, so great were the problems of a 
commander with disease in his own ranks, that before development 
of effective immunization techniques and antibiotics, the "blow-back" 
hazard in biological weapons made their general employment 
awkward. 

It has also been difficult in the past, although it is becoming less 
difficult in the light of modern warfare conventions, to draw sharp 
moral or ethical distinctions between situations in which a force 
awaits debilitation of its enemy by epidemic or endemic diseases 
before assault; in which the force accentuates the physical problems 
of its enemy by compounding the work of epidemic or endemic 
diseases by denying medical personnel, supplies or equipment or 
by refusing to exchange prisoners or permit civilians in enemy 
territory to emigrate; and in which the force deliberately infects 
enemy personnel with debilitating or fatal diseases. 

Nineteenth and early 20th century lawmakers and their advisers 
were unable to make to their satisfaction, in an era prior to the 
staging of total wars and the mechanical socialization of military 
risk, moral or ethical distinctions between these transactions. This 
inability weighed against any intensive consideration of biological 
warfare in the early arms conferences. 

Only two international conventions dealing with techniques of 
warfare contain provisions related or reasonably applicable to bio- 
logical warfare. The Geneva Gas Protocol of 1925 prohibits the "use 
of bacteriological methods of warfare." 77 Article 23(a) of the 
Regulations annexed to Hague Convention No. IV forbids the use 
of poisons or poisoned weapons and perhaps can be construed to 
extend to biological toxins. 78 

There has been no integration of these provisions for administra- 
tion and enforcement into the international health regime, The inter- 
national health regime is based upon a series of sanitary con- 
ventions. 79 The earliest of these was in 1851. The policies expressed 
in these conventions, keyed to modern medical knowledge and tech- 
niques, adjusted to contemporary world political organization, and 
applied to existing means of transport and communication, now 



^94 L.N.T.S. 65, 69 (1929). 

78 Naval War College, International Law Situations, 1908, 180. 

79 A summary of the Sanitary Conventions from 1851 through 1951 may be 
found in Goodman, International Health Organizations, 49-79 (1952). 



268 

appear in the Charter of the World Health Organization 80 and the 
Sanitary Regulations which this Organization issues. 81 Regional 
health organizations operate under the general aegis of the world 
body. 

There are no international legal restraints upon the development 
of biological munitions except to the extent that testing of the 
munitions is limited. Tests upon unwilling human subjects may be 
precluded by international law and limitations may exist upon the 
preemption or indefinite contamination of certain testing areas. 

Restrictions upon biological weapons in conventional warfare are 
uncertain and there is even greater ambiguity when these weapons 
are considered for use in various forms of unconventional warfare. 
Frequent condemnations of alleged biological warfare, when these 
condemnations are for the purpose of propaganda or to obscure 
preparations for biological warfare, meet no current legal im- 
pediment. 82 

Threatening an attack with biological weapons and clandestine 
deployment of these weapons to provide a coercive edge to diplomatic 
action may be reasonably expected to elicit a violent response from 
the threatened opponent. An attack with biological weapons may 
be difficult to detect until much time after the attack has been 
delivered. This time lag may range from a few hours to several 
weeks. 

There also may be no passive defensive measures against some bio- 
logical munitions. Such munitions might be mutants of biological 
pathogens little known in the country attacked or threatened. 83 



so Yearbook of the United Nations (1946-47), 793. 

81 For the current WHO Regulations No. 2 see 37 Official Records of the 
World Health Organization, 335 (1952). The International Sanitary Regulations 
are prepared and placed in force by an unusual treaty process. Draft regula- 
tions are prepared by an appropriate body of the World Health Organization 
and laid before the Health Assembly for discussion and adoption. Upon adop- 
tion, the Regulations are notified by the Director General to Governments and 
after the expiration of a time fixed in the notice are binding upon a member 
state which does not notify its rejection of them. See Constitution, World 
Health Organization, Articles 21, 22, Yearbook of the United Nations (1946-41), 
796. 

82 Aspects of the exchanges between the United States, the Soviet Union and 
Red China based upon biological warfare charges by the latter may be found 
in 26, 27 and 28 Department of State Bulletin (1951, 1952, 1953) passim and 
Bechhoefer, Postwar Negotiations for Arms Control, 194-201 (1961). 

83 "If the agents adaptable to biological warfare were limited to those that 
cause known diseases, the problems of defense would be less complex. But we 
know that there is a possibility that an enemy could develop mutant types of 
diseases for which there would be no known defenses. * * * " Stubbs, The 



269 

The only defense in this case is an attack upon sources of supply 
of the munition and upon delivery agencies. 

The National Security Council has chosen to rely upon diplomacy 
to eliminate the threat of biological attack confronting the United 
States. But the risk of failure of diplomatic processes is unac- 
ceptable in this case. The Nuevan-Scythian Concert must be given 
no opportunity to deliver their biological munitions while negotia- 
tions are under way. United States forces must be placed in a 
position from which the threat can be quickly eliminated if negotia- 
tions fail. 

The Situation has features in common with the Cuban Quarantine 
of 1962. Naval operations are to be conducted upon the high seas 
and in superjacent airspace. Air reconnaissance may be conducted 
over Nuevan territory. The naval action contemplated is of an 
economic nature. The flow of certain military supplies is to be 
interrupted without stimulating major coercive exchanges which 
might bring into operation the various treaties and customs incident 
to belligerency. 

There are also major distinctions. The danger of immediate attack 
is probably greater than in the Quarantine of- 1962. Biological 
weapons are maneuvered actively to apply pressure upon the 
United States. These weapons can be employed at sea for maximum 
flexibility and can be delivered without likelihood of immediate 
detection. 

The Organization of American States appears unwilling to sup- 
port the action of the United States. Once action by the United 
States commences, Scythian disengagement, unlike Soviet disengage- 
ment in the Quarantine of 1962, will be difficult because shipments 
out of Nueva of the prohibited materials and equipment also will be 
interdicted. 

The features in common with the Quarantine of 1962 mean that 
many of the legal problems present there will be involved also in 
the situation presently considered. Accordingly, legal aspects of 
naval participation in the Quarantine will first be examined. Its 
lessons will then be applied to the threat of biological warfare by 
Scythia and Nueva. 

2. Analysis of the Quarantine in Four Phases 

Former Secretary of State Dean Acheson, a distinguished lawyer, 
public servant and counsellor to the President in the Crisis of 
October 1962, has remarked that survival of a state is not a matter 

Critical Importance of CBR in National Defense (Robert A. Welch Foundation 
Research Bulletin No. 9, 1961), 11. 



270 

of law and the propriety of the Cuban Quarantine is not a legal 
issue. 84 Mr. Acheson does not suggest that law was irrelevant to 
the decision to quarantine but ascribed greater importance in such 
a decision to judgments by the President and his advisers concerning 
the timing of action and the generation of power to force a desired 
response from an opponent. 

Few persons consider the Executive Committee advising the 
President in October 1962, deduced its advice from international law, 
could have done this if it had tried, or confined its survey of alterna- 
tives to courses of action which international law clearly permitted. 
No rational decision maker is likely to analyze a problem in this 
way. 

The decision maker should forecast the likelihood of volitional 
acceptance, both of the end sought and the means considered, by 
persons whose values are affected significantly by the action pro- 
posed. There should be a preference for repetitive action, when 
surprise of the opponent is not critical, to secure coordination of the 
response in situations in which a response amenable to coordination 
might reasonably be predicted. Adequate machinery and standards 
for guiding subordinates in executing the decision should be pro- 
vided. 

But despite the accuracy of Mr. Acheson's observation when 
related to the high level of decision he was considering, as problems 
were defined or particularized on lower levels of decision as the 
Quarantine was planned and executed, law — in its conventional 
sense — became increasingly relevant. As concrete cases were pre- 
sented, law was needed to coordinate action, persuade opponents and 
allies and guide subordinates. 

Many decisions were involved in the Quarantine, each in a slightly 
different context, and each of which could raise distinct legal 
issues. 

Rational judgments applying law to the Quarantine require con- 
sideration of the basic decision by the President with the many 
other decisions by the President and other officials and private 
persons involved in the conflict. These include the President's deci- 
sion to coordinate action by the United States with the mediating 
efforts of the Secretary General, the President's decision to terminate 
the Quarantine, the decisions of his executive officers and the deci- 
sions of officers of international organizations and other states 
drawn into the conflict. 

The dimensions of conflict in the Quarantine changed as new 
demands by new participants were asserted. The shape of inter- 



84 (1963) Proc. Am. Soc. Int. Law, 13, 14. 



271 

action among the participants varied from a high degree of intensity 
of coercion in the beginning to a high intensity of persuasion in the 
end. As new advisors to new decision makers joined the contest, 
differing concepts of the function of law and the requirements of a 
legal order were injected into the policy exchanges. 

To develop a perspective of the mesh of decisions involved in the 
Quarantine, it is convenient to consider the Quarantine as having 
developed in four phases. The phase lines selected are laid at points 
at which key or critical policies were exposed by their maker. "Ex- 
posure" of a policy means that the policy maker has temporarily 
crystallized his position vis-a-vis his own subordinates or superiors 
or with respect to the target of his policy. 

The policy maker exposes his policy when he reaches either a 
point of "no return'' or a point at which a return to the status quo 
ante would be so awkward that serious consideration of this return 
is precluded. Execution of the policy need not necessarily have 
commenced for these situations to arise. 

a. CUBAN QUARANTINE: PHASE 1 

The first phase of the Quarantine began with the President's 
receipt of information concerning the presence of offensive weapons 
with crews in Cuba. The phase ended with delivery of the President's 
proposed public address on the crisis to Ambassador Dobrynin at 
about 6:00 P.M., E.S.T., 22 October 1962. This phase covers the 
secret planning of the Quarantine. 

The most detailed accounts of the conferences of the President's 
"Executive Committee" have been offered by Mr Sorensen, Special 
Counsel to the President and by Mr. Abel. 85 However, it is probable 
that the details of the conferences have been incompletely disclosed 
and are likely to remain so until security restrictions are lifted and 
the recollections of additional participants and their staffs can be 
probed. Any current analysis of the role of law in this decision- 
making process must necessarily be provisional. 

All commentators dealing with this first phase of the Quarantine 
recognize the planning as unilateral by the United States. Allies 
of the United States were informed of the decision before the 



85 Sorensen, Kennedy, 674-718 (1965); Abel, The Missile Crisis (1966). For 
similar detail see Schlesinger, A Thousand Days, 801-819 (1965). All accounts 
suggest legal considerations were involved in formulating the "quarantine" 
policy but figured in a subordinate role. Accounts, which are less detailed and 
no doubt less accurate since the writers lacked first-hand knowledge of the 
proceedings, may be found in the controversial article by Alsop and Bartlett, 
"In Time of Crisis," Saturday Evening Post, 8 December 1962, 15 and in Daniel 
and Hubbell, Strike in the West (1963). 



272 

announcement to the American public. They were not, however, 
consulted in its formulation. 

It is unlikely the legal foundations of any demands these allies 
might make were considered in any detail by the Executive Com- 
mittee advising the President. Treaty obligations of the United 
States and international legal doctrine bearing upon "intervention" 
do appear to have been considered. 

The presence of Ambassador Stevenson as a member of the Ex- 
ecutive Committee and reports of his extensive participation suggest 
careful attention to the alternatives open to the United States as a 
member of the United Nations. Treaties of the Inter- American 
system appear to have been discussed and weighed. Kapid action 
by the United States in bringing its case before the United Nations 
and the Organization of American States suggests responsibilities 
of membership in these organizations were carefully assessed. 

The selection of naval force as the major policy instrument in- 
dicates consideration and appreciation of the legal features of the 
impending conflict. Naval units — surface, subsurface and air — 
can apply a broad range of coercive and persuasive policies. Naval 
force is the flexible armed instrument for national action. 

The Quarantine may have been among the least coercive of the 
alternatives open to the United States in the October crisis. But 
naval forces, in executing the Quarantine, could also apply maxi- 
mum coercion to destroy the missiles and their sites if this proved 
necessary. 

Furthermore, the operations of surface craft in situations such as 
those developed in the Quarantine have long been familiar. The 
"pacific blockades" discussed by publicists in the late 19th and early 
20th centuries may not have hurdled a generation of controversy 
to become settled international legal custom. But as minimum ex- 
ercises of coercion in situations in which maximum exercises of 
coercion might reasonably have been expected, pacific blockades 
have had virtues as convenient short circuits for applications of 
coercive power. 

Moreover, by adopting a pattern of naval action similar to pacific 
blockade, United States policy makers were working at the threshold 
of law — where the coordinating features of law were present 
although the persuasive features of unresisted repeated practice were 
lacking. The examples of pacific blockade were few and records of 
voluntary agreement to their use even fewer. 

Pacific blockade records, few as they were, provided a basis for 
Soviet predictions concerning the probable direction of development 
of American action. The Soviets could read between the lines of 



273 

the various executive statements concerning Quarantine operations. 
A standard was provided for estimating the degree of violence 
which United States naval forces were likely to apply. 

In war a policy hewing to this predictable pattern might spell 
disaster for the United States. In the Quarantine, communications 
were improved and the chances of accomplishing the objects of 
United States policies were enhanced. 

The coordinating element of law was present in adoption by the 
United States of a "pacific contraband" pattern for action — a minor 
variant of the "pacific blockade." The United States did not rely 
on "pacific blockade" doctrine to persuade its allies or opponents. Nor 
would the Soviets have admitted the "legality" of naval interference 
with their shipping. 

Pacific Blockade 

Pacific blockade is founded upon the sharp war-peace dichotomy 
characterizing 19th century legal thoughts A few instances of 
pacific blockade, such as the French blockades of Formosa in 1884- 
1885 86 and of Siam in 1893, 87 are described as "pacific" principally 
because the blockaded state could offer no resistance. In other cases, 
such as the Chilean blockade of Bolivia in 1879, 88 the conflict was a 
war in the nineteenth century legal sense, but was too limited to 
stimulate declarations of neutrality by nonparticipants. Still other 
cases involve uses of naval power to collect debts from recalcitrant 
debtors. The pacific blockades of Portugal (1831) ; 89 Carthagena 
(1834) ; 90 Mexico (1838) ; 91 and San Salvador (1842) 92 by France; 
New Granada (1837) ; 93 Nicaragua (1842 and 1844) ; 94 Greece 
(1850) ; 95 and Brazil (1862-1863) 96 by Great Britain; and the 
joint blockade of Venezuela by British, German and Italian units 
in 1902-1903 ; 97 fall within this category. Today these actions clearly 
would be inconsistent with treaty obligations of the blockaders. 

Several pacific blockade cases involved peace maintenance efforts 
in joint operation by naval powers. These cases occurred before the 



86 See Hogan, Pacific Blockade, 122 (1908). 

87 Ibid., 137. 

88 Ibid., 120. 

89 Ibid., 77. 

90 Ibid., 82. 
si Ibid., 85. 

92 Ibid., 91. 

93 ibid., 83. 

9* ibid., 92, 95. 

95 Ibid., 105. 

96 Ibid., 117. 

97 Ibid., 149. 



274 

development of multinational security organizations, such as the 
League of Nations and the United Nations. 

Thus Great Britain, Kussia and France agreed in 1827 to act 
together to restore peace in Greece. The powers established a block- 
ade of the Morea to prevent egress of the Turkish fleet from 
Navarino; and, without a rupture of diplomatic relations with the 
Porte, ultimately destroyed the Turkish fleet in a major naval 
action. 98 

Anglo-French naval forces blockaded the Netherlands in 1832-1833 
to require the latter to execute the treaty of 1831 for the independence 
of Belgium." French naval units blockaded Uruguay to cut off 
supplies from Argentina to the Oribe forces; 10 ° and this blockade 
was revived in 1845-1850 by Anglo-French vessels. 101 

The blockades directed by Great Britain, Austria, Germany, Italy 
and Russia against Greece in 1886 ; 102 and by the same powers with 
the addition of France against the Greeks in Crete in 1897 ; 10S have 
been regarded by most commentators as actions taken with a 
principal motive to reduce disorder and facilitate negotiations to 
restore peace. 

When peace enforcement or restoration of peace has been the 
principal object of naval action, the form of interference with 
shipping has been analogous to a wartime imposition of contraband 
controls rather than to a "close" blockade as understood prior to 
World War I. In the Greek blockade of 1827, the blockading force 
appears to have denied only weapons and reinforcements to the 
Turkish army. 104 The blockade of Crete in 1897, while applying to 
all Greek vessels, was applied only to supplies destined for Greek 
insurgents when carried on vessels of other states. 105 The French 
blockade of Uruguay in 1838-1840 seemed intended to deny arms 
and troops to Oribe, although the joint Anglo-French blockade of 
1845-1850 seems to have extended to all dutiable merchandise. 106 

There has been no express formulation by writers on the subject 
or in the judgments of courts of a theory of "pacific contraband" 



»8 ibid., 73. 
*> Ibid., 80. 
ioo Ibid., 88. 

101 Ibid., 98. 

102 Ibid., 126. 

103 ibid., 142. 

104 ibid., 74, 75. 
los ibid., 144, 49. 

1Qe Ibid., 89. Note, however, the official notice to the British Foreign Office 
seemed to extend to "any merchandise subject to custom house duties" as was 
in fact the ambit of the later Anglo-French blockade of 1840-1850. Ibid., 161. 



275 

as distinguished from "pacific blockade." In Le Comte de Thomar, 107 
decided by the French Prize Court, a Brazilian merchantman which 
had received no notice of the French blockade of Uruguay was 
seized while carrying powder and lead to the Oribe forces. Under 
the French prize practice, the vessel could not be condemned for 
breach of blockade because it had no notice. 

It was then sought to condemn its cargo as contraband. This the 
court held could not be done because there could be contraband 
only in time of war and only a belligerent could seize it. 

Yet, despite Le Comte de Thomar, the pacific contraband aspect 
of pacific blockade, described by some writers as a "selective block- 
ade" ; and a non wartime practice related to unneutral service, which 
might be described as "unlawful destination, detention or service"; 
when divorced from the rubric of pacific blockade and the obsolete 
practice by which debts are collected through the use of naval 
power, may suggest the nature of future nonbelligerent applications 
of naval force involving minimum violence. 

The British and German pacific blockade of Zanzibar in 1888- 
1889, to interrupt the trade in arms is a typical early example of 
application of pacific contraband rules; or to the extent directed 
to interruption of the traffic in slaves, as application of doctrine 
concerning "unlawful destination, detention, or service." 108 

Nationalist Chinese naval operations, conducted upon a theory 
of closure of the mainland ports, might be better received by the 
major maritime nations if conducted under clear-cut "pacific" 
contraband lists. 109 

During the period of illegal entries into Palestine, preceding 
termination of the British Mandate, British operations against 
ships on the high seas carrying illegal immigrants might be sup- 
ported by an analogy to unneutral service in time of war. 110 A state 
normally is expected to apply its immigrant controls within its 
territorial waters. But this narrow ambit for action presupposes 
stable political conditions within the state which seeks to control 
immigration and controls applied at points of sea or air embarka- 
tion. 



107 Pistoye & Duverdy, 1 Traite des Prises Maritimes, 390 (1855). See Hogan, 
Pacific Blockade, 104 (1908). 

108 Hogan, Pacific Blockade, 130 (1908). 

109 p or a discussion of the theory of port closure see Woolsey, "Closure of 
Ports of the Chinese Nationalist Government," 44 A.J.I.L., 350 (1950). 

1X0 For a discussion of British activity see Nairn Molvan v. Attorney General 
(1948) A.C. 351 (P.C. 1948). Over forty vessels were visited and searched. Most 
of these ultimately were seized, although in most instances the seizures took 
place within Palestinian territorial waters. 



276 

British visit and search of vessels upon the high seas suspected of 
carrying illegal immigrants; escort of vessels found to be carrying 
illegal immigrants within Palestinian territorial waters; and seizure 
of the vessels there with an orderly disembarkation and temporary 
detention of their passengers seemed acceptable to most of the 
maritime nations. 

Practices of "pacific contraband" and "unlawful detention, destina- 
tion or service," for which no general acceptance by states can 
presently be claimed, merge into the relatively well settled practices 
by which a state enforces its revenue and quarantine laws against 
vessels "hovering" off its coast or its trade restrictions imposed upon 
persons within its territorial waters. A hovering theory will support 
French naval action to intercept arms shipments to Algeria. "Self- 
defense," as in the "Quarantine," also is a strong argument. 

Dutch naval operations in the Indonesian area prior to Indonesian 
independence appear to have been almost, if not entirely, within 
Indonesian territorial waters and aimed at smuggling, the arms 
trade, and shipments of nationalized property. 111 The Egyptian 
naval action against shipping to Israel commenced as a blockade 
jure belli confined, however, largely to interdiction in the Suez Canal 
and its approaches. 112 

While there is not general acquiescence in any of these practices 
by the states affected, upon which a positivistic claim of law de- 
veloped by consent can be founded, it has become almost routine to 
tolerate naval interferences with shipping in areas in which tensions 
are great, as in the Formosa Straits or Caribbean, with little more 
than token protests. Policy makers of states have been conditioned 
to accept naval interference with shipping without a routine violent 
response although protests may be filed. The response is much the 
same as that of the usual private citizen to police officers serving 
his community. 

This general attitude seems based upon four factors: (1) The 
close control maintained by a state over its naval forces and the high 
degree of discipline of officers and men which the efficient conduct of 
naval affairs requires; (2) The usual familiarity of naval officers 
with international law pertaining to their duties; (3) The lack of 
an adequate system of international police upon the high seas; 



111 See 8.8. Martin Behrman, 16 Department of State Bulletin, 720 (1947). 

112 A summary of decisions of the Egyptian Prize Court may be found in 
44 A.J.I.L., 774 (1950). Continuation of the Egyptian action since the Armistice, 
which has heen described by several writers as a form of pacific blockade, is 
considered in detail in Gross, "Passage Through the Suez Canal of Israel Bound 
Cargo and Israel Ships," 51 A.J.I.L., 530 (1957). 



277 

(4) The range of persuasion and coercion of which a naval force 
is capable. 

The choice of the naval service as the major executive agency in 
the Quarantine suggests the Executive Committee weighed the 
flexibility in law and power of this service in its recommendation 
to the President. While the Navy was a logical and efficient choice 
to interdict sea carriage of ballistic missiles, their supporting equip- 
ment and unassembled aircraft, interdiction by sea action was by 
no means the quickest method to exclude the offensive arms from 
Cuban soil. 

A violent response to seizures of Cuban ports of destination or 
launching sites for the missiles by airborne units or to destruction 
of these by ultradecisive weapons might reasonably be predicted. 
Policy makers are conditioned to accept without violent responsive 
action the accustomed and easily controlled types of intervention. 

The "justification" for prompt action by the United States to 
interfere with installation of the Soviet missiles and their support- 
ing equipment and the importation into Cuba and assembly there 
of jet bombers was considerable. As summarized in the President's 
public address of 22 October 1962 113 and as derived from other 
public sources, these facts were before the Executive Committee: 

(1) Medium range ballistic missiles with an effective nuclear 
armed range of 1,000 nautical miles were installed in Cuba and 
operational. Sites for intermediate range ballistic missiles were under 
construction. 

(2) Jet bombers capable of transporting and delivering nuclear 
weapons were in Cuba and being assembled. Bases for them were 
in preparation. 

(3) Soviet crews to man these weapons systems were in Cuba. 

(4) Additional missiles, fuel, supporting equipment, planes and 
crews were in transit by sea to Cuba. 

(5) In the usual military sense, undistorted for deception or 
propaganda, the missiles and aircraft in Cuba sent by the Soviet 
Union were designed principally as "initiative" or "offensive" 
weapons. The President had made clear to Soviet representatives 
that weapons of this type were regarded as "offensive weapons" by 
the United States. 

(6) Missiles fired from Cuba against targets in the United States 
would bypass the long-range warning system. The reaction time 
which this long-range warning system could provide would be 
eliminated. This reduced the deterrent effect of United States missiles 
and aircraft. Furthermore, bringing all parts of the United States 



113 N.Y. Times, Oct. 23, 1962, p. 18, col. 2. 



278 

within range of Soviet medium-range and intermediate-range 
missiles eliminated the advantage of the United States in effective 
intercontinental (long-range) ballistic missiles. The power equilib- 
rium between the free and closed worlds was significantly upset. 

(7) Shipment and installation of the Soviet weapons systems were 
rapid and clandestine. Public and private assurances of representa- 
tives of the Soviet Union were violated. These features suggested 
Soviet intentions of (1) surprise attack or (2) surprise diplomatic 
action. Although failure to camouflage the bases with care suggests 
surprise diplomatic action as the immediate Soviet intention, sur- 
prise attack could not be excluded in view of the tension between 
the United States and the Soviet Union. 

While the existence of "justification" for action does not mean that 
the action was necessarily "legal'' or necessarily "illegal," features 
other than subjective judgments by an actor being relevant in com- 
munity judgments within a legal order, the continuing effort to 
find facts before the decision to Quarantine was made and as the 
Quarantine was executed, coupled with the element of "necessity" 
for action which these facts disclosed, do bear upon community 
judgments of legality. 

During the deliberations of the Executive Committee and there- 
after during conduct of the Quarantine, except for a short time 
during the visit of Acting Secretary General U Thant to Cuba, 
intensive efforts to assemble facts were made by air reconnaissance 
and other means. Although no decision maker constitutionally 
responsible for the security of his state against foreign armed attack 
is expected to exhaust the fact-finding resources at his disposal — 
in the sense that a court or legislative committee might be expected 
to delay decisions pending availability of important witnesses or 
documents — diligence in seeking facts before his decision and during 
execution of his policy is an element of the legal standard of "reason- 
ableness" by which his action may be measured. 

Naval force was used to stabilize Soviet power in Cuba at its 
pre-Quarantine level pending a clarification of Soviet objectives. 
The impact of naval action in producing a disclosure of Soviet 
intentions, an important part of the fact-finding process, was as 
important as the impact of naval action in preserving the status quo. 
Stability and information were joined to permit the working of 
persuasive processes. 

The intense effort to acquire facts upon which a sound decision 
might be based; the apparent care and reflection by the Executive 
Committee in formulating the advice considered by the President; 
the President's decision to use minimum coercion; his selection of 



279 

naval force as the coercive instrument; the limitations placed upon 
employment of the naval force — both in the Proclamation and in 
directives of the Secretary of Defense; and the immediate recourse 
both to the Organization of American States and the United Nations ; 
all suggest the decisive role played by domestic and international 
law in channeling the President's decision. A more effective work- 
ing of law in the development of human affairs is difficult to con- 
ceive — and the case for legality of the first phase of the Quarantine 
was established before any Quarantining vessel was on station. 114 

b. CUBAN QUARANTINE: PHASE 2 

The second phase of the Quarantine extends from delivery 
of the Dobrynin letter on 22 October until publication of the Soviet 
order to its vessels transporting prohibited weapons, equipment or 
supplies to avoid the area of American naval interdiction. This order 
was issued at an undisclosed time on the morning of 24 October. 
The President's Quarantine Proclamation had become effective at 
10:00 A.M., E.S.T., on that date. 

The period of unconcerted confrontation of the Soviet Union by 
the United States was limited to this second phase. The only con- 
tact, however, between the Soviet units and the quarantining force 
was audiovisual. This contact included sonar tracking of submarines 
and air reconnaissance of Soviet shipping by Navy and Air Force 
units. 

Overwhelming force was coupled with concomitant recourse by 
the United States to processes for negotiation. The case of the 
United States was placed promptly before the Security Council 
of the United Nations. 115 The United States obtained the support 



114 An impressive array of legal skills were available to the President in his 
Executive Committee — the Attorney General, Ambassador Stevenson, Mr. Ache- 
son and Mr. Ball performing advisory functions. 

Professor Mallison lists the Judge Advocate General of the Navy, the Deputy 
Judge Advocate General, the Assistant Navy Judge Advocate General for 
Administrative and International Law and the Director of the Navy Interna- 
tional Law Division as having worked on the President's Proclamation. 

Civilian consultants included the Deputy Attorney General, the Legal Adviser 
of the Department of State, the General Counsel of the Department of Defense, 
and Mr. Yarmolinsky, Special Assistant to the Secretary of Defense. See Malli- 
son, "Limited Naval Blockade or Quarantine Interdiction : National and Collec- 
tive Defense Claims Valid Under International Law," 31 Geo. Wash. L. Rev., 
335, 336 n. 196 (1962). 

A detailed identification of Executive Committee members appears in Soren- 
sen, Kennedy, 674-675 (1965). 

115 For the text of Ambassador Stevenson's letter to President Zorin of the 



280 

of the Organization of American States, formalized in the Resolu- 
tion of the Provisional Organ of Consultation. 116 Correspondence 
was exchanged between the President and Chairman Khrushchev. 117 
As the phase ended, the conciliatory tone of the Khrushchev letter 
to Lord Russell signalled Soviet recognition of a margin of United 
States naval supremacy in the Caribbean which precluded rational 
challenge. 118 



Security Council and the text of the appended draft resolution, see 47 Depart- 
ment of State Bulletin, 724 (1962). 

The draft resolution called for immediate dismantling and withdrawal from 
Cuba of all missiles and other offensive weapons, for the dispatch to Cuba of 
a United Nations observer corps to see that this was done, and for termination 
of the Quarantine upon United Nations certification of compliance with the 
order to dismantle and withdraw the missiles and other offensive weapons. 

Paragraph 4 of the draft resolution urged the United States and the Soviet 
Union to confer promptly on measures to remove the existing threat to the 
security of the Western Hemisphere and report thereon to the Security Council. 
The text of Ambassador Stevenson's statement to the Security Council on 
October 23, 1962, appears at 47 Department of State Bulletin, 723 (1962). 

116 See 47 Department of State Bulletin, 722 (1962). After a preamble, the 
Council resolves: (1) To call for the immediate dismanting and withdrawal 
from Cuba of all missiles and other weapons with any offensive capability; 
(2) To recommend that the member states, in accordance with Articles 6 and 
8 of the Inter-American Treaty of Reciprocal Assistance, take all measures, 
individually and collectively, including the use of armed forces which they may 
deem necessary to ensure that the Government of Cuba cannot continue to 
receive from the Sino-Soviet powers military material and related supplies 
which may threaten the peace and security of the Continent and to prevent the 
missiles in Cuba with offensive capability from ever becoming an active threat 
to the peace and security of the Continent; (3) To inform the Security Council 
of the United Nations of this Resolution in accordance with Article 54 of the 
Charter of the United Nations and to express the hope that the Security 
Council will, in accordance with the draft Resolution introduced by the United 
States, dispatch United Nations observers to Cuba at the earliest moment; 
(4) To continue to serve provisionally as Organ of Consultation and to 
request the member states to keep the Organ of Consultation duly informed of 
measures taken by them in accordance with paragraph two of this Resolution. 

The Resolution was approved unanimously by the Council. As the Resolution 
suggests, the case of the United States was before the Security Council before 
the Resolution was passed. The President's Proclamation of Quarantine was 
delayed until the Council of the Organization of American States had acted. 
The Proclamation of Quarantine appears at 27 Federal Register 10401 (No. 
3504) and also at 47 Department of State Bulletin, 111 (1962). 

117 See N.Y. Times, Oct. 25, 1962, p. 22, col. 2. The text of this letter has never 
been published. The secret letter paraphrased in Abel, The Missile Crisis, 178- 
181 (1966) appears to be of a later date. Delivered to the President apparently 
on October 24, it was said "to be in the same inconclusive vein as the Kremlin's 
public statements thus far." 

118 See N.Y. Times, Oct. 25, 1962, p. 22, col. 2. The letter was published five 



281 

Although the problem remained to secure the removal of missiles 
and other offensive weapons from Cuba, an increase of the threat to 
the United States by the introduction of additional missiles or air- 
craft was blocked by the mere display of naval force. Once deter- 
mination to use this force was demonstrated, the United States and 
the Soviet Union resolved on a settlement of the issues by negotiation 
rather than by violence. 

c. CUBAN QUARANTINE: PHASE 3 

During the third phase of the Quarantine, extending from 
publication of the diversion order by the Soviet Union to its trans- 
ports to publication of the Khrushchev letter of 28 October, 119 
announcing his order for dismantling and return to the Soviet Union 
of missiles, offensive aircraft and their supporting equipment in 
Cuba, Acting Secretary General U Thant became active in attempt- 
ing to resolve the conflict. Seeking a voluntary suspension of both 
arms shipments from the Soviet Union and the Quarantine by the 
United States, the Acting Secretary General secured an informal 
understanding on 26 October, stated in the words of the President : 120 

* * * /I/f the Soviet Union accepts and abides by your request 
'that the Soviet ships already on their way to Cuba stay away 
from the interception area' for the limited time required for 
preliminary discussion, you may be assured that this Govern- 
ment will accept and abide by your request that our vessels in 
the Caribbean 'do everything possible to avoid direct con- 
frontation with Soviet ships in the next few days in order to 
minimize the risk of an untoward incident' * * * 

Chairman Khrushchev, having diverted Soviet vessels because he 
was powerless to prevent their seizure and could not hazard capture 
of their secret tackle and cargo, replied to the Acting Secretary 
General : 121 

* * * /W/e therefore accept your proposal, and have ordered 
the masters of Soviet vessels bound for Cuba but not yet within 
the area of the American warships' piratical activities to stay 
out of the interception area as you recommend. 

Any substantial chance of a violent encounter between United 

hours after the Quarantine went into effect. While Daniel and Hubbell state 
that the State Department decided to. ^ignore this maneuver because Lord 
Russell was "so discredited a figure," the letter suggested summit talks and was 
the first public suggestion that the Soviet Union would not attempt to break 
the Quarantine. See Daniel and Hubbell, Strike in the West, 139 (1963). 

119 See 47 Department of State Bulletin, 743 (1962). 

^o N.Y. Times, Oct. 27, 1962, p. 8, col. 4. 

121 N.Y. Times, Oct. 27, 1962, p. 8, col. 2, 



282 

States naval forces and Soviet surface craft was thus eliminated. 
A watch was maintained by United States naval units, a few 
Soviet trawlers were shadowed and Soviet and unidentified sub- 
marines were harassed. 122 

Prior to this informal agreement secured by the Acting Secretary 
General, United States naval personnel from two ships boarded and 
searched Marucla, a Soviet chartered Lebanese merchantman, about 
180 miles northwest of Nassau. The master cooperated in the visit 
and search. No prohibited items were found. 123 Two Soviet tankers, 
Vinnitiza and Bucharest, and an East German passenger ship, 
Voelkerfreund, traversed the interception area without being 
boarded. The master of Bucharest and the captain of the inter- 
cepting destroyer exchanged messages. 124 Vinnitiza and Voelker- 
freund appear to have been hailed, but no further details of the 
encounters are reported. 125 

The disturbance of sea commerce of states other than the Soviet 
Union during the third phase of the Quarantine was at a minimum. 
Special warnings that reactions to the Quarantine might render 
hazardous transit of the Yucatan Channel, Florida Straits and 
Windward Passage, were broadcast at regular intervals by the 
Navy. A "Clearcert" system, similar to the British Navicert system 
of World War II, was announced on 27 October. 126 Many of the 
certificates were issued. 

A clearance certificate could be obtained from United States 
customs authorities for a vessel departing without contraband from 
a United States port — whether bound for Cuba or merely transiting 
the interception zone. For vessels departing from foreign ports, a 
Notice of Transit could be filed with the American consulate at the 
last port of departure if the vessel was only to cross the interception 



122 See Daniel and Hubbell, Strike in the West, 163 (1963). 

123 Ibid., 166-67 for a detailed account; Sorensen, Kennedy, 710 (1965). 

v*N.Y. Times, Oct. 26, 1962, p. 1, col. 2. The encounter occurred 22 hours 
after the effective time of the Proclamation. The master appeared uncooperative, 
but from an inspection without boarding, naval personnel decided only petro- 
leum products were aboard. 

125 Vinnitiza was the first Soviet vessel to pass the Quarantine and reach 
Cuba. See N.Y. Times, Oct. 27, 1962, p. 6, col. 4. She may have cleared the inter- 
ception area before the Quarantine was fully established. Bucharest and 
Voelkerfreund were allowed to pass without boarding by Presidential order 
that sufficient time be allowed for each ship to obtain Soviet instructions. See 
Abel, The Missile Crisis, 15&-159 (1966) ; Sorensen, Kennedy, 710 (1965). 

126 See N.Y. Times, Oct. 25, 1962, p. 20, col. 6. These notices are reproduced 
in Christol and Davis, "Maritime Quarantine : The Naval Interdiction of 
Offensive Weapons and Associated Material to Cuba, 1962," 57 A.J.I.L., 525, 
544 (1963). 



283 

zone. If bound for a Cuban port with no contraband, a clearance 
certificate could be obtained from the American consulate. 127 

There was minor interference with shipping. The depressing 
effect of the Quarantine upon trade in the Caribbean was noted 
in the Greek merchant marine. 128 The Holland-American and 
Swedish-American Lines rerouted their vessels to avoid the Wind- 
ward Passage. 129 British marine underwriters invoked the fourteen 
day war risk clause in insurance contracts upon vessels engaging 
in the Cuban trade and rates for the excluded area had to be 
established by special agreement. 130 Air traffic into Cuba and across 
the interception zone was reduced by Cuban security restrictions 
on air transit and denial of landing privileges by many states to 
the Soviet Union. 131 Although the Quarantine Proclamation applied 
to aircraft, no effort appears to have been made by the United States 
to use Quarantining units to intercept or divert them. 

The coercive exchanges of the second phase of the Quarantine, 
as a result of which no physical damage was inflicted, were re- 
shaped by negotiation during the third phase into mutual postures 
in which persuasive rather than coercive techniques were paramount. 
This position was attained by reliance both by the United States 
and the Soviet Union upon processes of mediation and negotiation 
which the United States could provide, coupled with reasonable 
cooperation by the President in a period of stress and anxiety with 
the peacemaking efforts of the Acting Secretary General. 

d. THE CUBAN QUARANTINE: PHASE 4, 

During the fourth phase of the Quarantine, which might be 
described as a "peeping torn blockade," naval action by the United 
States was concerted with action by the Soviets. Apart from the 
continued harassment of submarines, 132 there were no coercive 
features. 



127 See 47 Department of State Bulletin, 747 (1962). The vessel could be 
boarded and searched even if it possessed the clearance certificate or had filed 
the notice of transit. This interference was unlikely and an expeditious clear- 
ance was possible. 

128 See N.Y. Times, Oct. 26, 1962, p. 18, col. 3. Two hundred Greek vessels 
were said to be laid up with about 100 more affected in their use by restric- 
tions on the Cuban trade. 

12 9 N.Y. Times, Oct. 25, 1962, p. 21, col. 2. 

130 N.Y. Times, Oct. 25, 1962, p. 21, col. 4. United States insurers had ceased 
coverage with the embargo upon American shipments to Cuba. 

131 N.Y. Times, Oct. 24, 1962, p. 22, col. 4; Oct. 27, 1962, p. 7, col. 6. 

132 Submarines were warned to surface by underwater explosion of four or 
five harmless charges accompanied by the international code signal "I.D.K.C.A.," 



284 

Eight Soviet vessels outward bound from Cuba were visually 
inspected without boarding. The visual inspections were conducted 
from ships alongside the Soviet transports and from helicopters. 
Masters of the Soviet vessels were cooperative in almost every 
instance. Some of them ordered removal of the covers of crates on 
deck. The vessels transported a total of forty-two crates which 
appeared to contain missiles and deck cargo which appeared to be 
missile launching equipment. 

The Quarantine was suspended for two days (30 and 31 October) 
while the Acting Secretary General was in Cuba. The Quarantine 
was terminated on 21 November 1962 after the President was assured 
by Chairman Khrushchev that Soviet jet bombers would be with- 
drawn within thirty days. 133 

3. Selected Legal Analyses of the Quarantine: Applications to 
the Threat of Biological Attack 

Writing shortly after termination of the Quarantine, Professor 
Mallison of the George Washington Law School developed effective 
self-defense and collective self-defense arguments supporting the 
United States action. 134 Basing his analysis upon the framework 
developed by Professor McDougal and Dr. Feliciano, 135 Professor 
Mallison examines the objectives of the claimants; the proportion of 
the response by the United States to the initiating coercion of the 
Soviet Union ; and the reasonableness of the expectation of necessity 
in the responding action. 

He finds the Quarantine a form of coercion permitted under Arti- 
cles 51 and 2(4) of the United Nations Charter. The weight of a 
collective judgment of necessity when action is pursuant to the 
authority of the Organization of American States is stressed. 



meaning "rise to the surface." Submarines were then to surface on an easterly 
course. 

Contact by United States naval forces with Soviet and unidentified sub- 
marines was said by Admiral George W. Anderson, U.S.N., Chief of Naval 
Operations during the Quarantine, to have provided "perhaps the best oppor- 
tunity since World War II" to perfect the skills of United States antisubmarine 
warfare forces. See Christol and Davis, "Maritime Quarantine : The Naval 
Interdiction of Offensive Weapons and Associated Material to Cuba, 1962." 57 
A.J.I.L., 525, note 26 at 530 (1963). 

133 N.Y. Times, Nov. 21, 1962, p. 10, col. 1; Pres. Proc. No. 3507, 27 Federal 
Register 11525 (1962). 

134 Mallison, "Limited Naval Blockade or Quarantine Interdiction : National 
and Collective Defense Claims Valid Under International Law," 31 Geo. Wash. 
L. Rev., 335 (1962). 

135 McDougal and Feliciano, Law and Minimum World Public Order (1961). 



285 

Summarizing his conclusions concerning legality of the Quaran- 
tine, Professor Mallison writes : 136 

* * * /T/he limited coercion involved in the quarantine- 
interdiction was used in response to the initiating coercion of the 
Soviet Union. This initiating coercion has been appraised factu- 
ally as posing a threat to the very survival of the United States. 
* * * It has been appraised legally as inconsistent with the legal 
obligations assumed by member states of the United Nations. In 
this context, the formulation and implementation of the naval 
quarantine-interdiction amount to the least possible use of the 
military instrument. Any lesser use would have amounted to 
abandonment of the military instrument and exclusive reliance 
upon noncoercive procedures which would almost certainly have 
been ineffective without supporting military power. The quaran- 
tine-interdiction * * * meets the requirements of reasonable neces- 
sity in its most stringent form. In the same way, the propor- 
tionality requirement in its most extreme form is met easily. 
The conclusion of validity under international law follows. If it 
did not, the consequence would be that the inherent right of 
national and collective self-defense, and its recognition as /a/ 
primary right in the United Nations Charter, would be destroyed. 
The Mallison self-defense and collective self-defense position re- 
ceived support by Professors Fenwick, 137 MacChesney 138 and 
McDougal 139 in editorial comments written about six months after 
termination of the Quarantine. The Mallison position tends to be 
supported by other commentators even though the latter may offer 
some other ground for validity of the United States action. 

The official position of the Department of State concerning legality 
of the Quarantine, offered to the press and set forth in detail in arti- 
cles by Legal Adviser Chayes 140 and Deputy Legal Adviser 
Meeker, 141 pivots upon the Resolution of 23 October 1962 by the 
Council of the Organization of American States. Acting provisionally 
as an Organ of Consultation, the Council recommended individual 



136 Mallison, supra, note 134 at 392. 

137 Fenwick, "The Quarantine Against Cuba : Legal or Illegal," 57 A.J.I.L., 
588 (1963). 

138 MacChesney, "Some Comments on the 'Quarantine' of Cuba," 57 A.J.I.L., 
592 (1963). 

139 McDougal, "The Soviet-Cuban Quarantine and Self -Defense," 57 A.J.I.L., 
597 (1963). 

140 See Chayes, "The Legal Case for U.S. Action on Cuba," 47 Department of 
State Bulletin, 763 (1962) ; "Law and the Quarantine of Cuba," 41 Foreign 
Affairs, 550 (1963) ; and "Remarks," (1963) Proe. Am. Soc. Int. Law, 10. 

141 Meeker, "Defensive Quarantine and the Law," 57 A.J.I.L., 515 (1963). 



286 

and collective action by member states, including armed force, which 
these states deemed necessary to : 

* * * ensure that the Government of Cuba cannot continue to 
receive from the Sino-Soviet powers military material and re- 
lated supplies which may threaten the peace and security of the 
Continent and prevent the missiles in Cuba with offensive capa- 
bility from ever becoming an active threat to the peace and 
security of the Continent. 142 

The State Department law officers argue under Article 52(1) of 
the United Nations Charter, 143 the Organization of American States, 
while still subordinate to the World Organization, may use force in 
cases other than those involving armed attacks when this use is to 
maintain peace and security in the Hemisphere. This action may be 
taken without prior authorization by the Security Council. 

The action is stated to be consistent with Article 2(4) of the 
United Nations Charter 144 as a measure adopted by a regional orga- 
nization in conformity to the provisions of Chapter VIII. The pur- 
poses of the Organization of American States and its activities are 
consistent with the purposes and principles of the United Nations 
as required by Article 52(1). 

Prior authorization by the Security Council is said by the State 
Department officials to be unnecessary under Article 53(1) because 
the Organ of Consultation recommended rather than ordered a use 
of force. Language of the Charter, an advisory opinion of the World 
Court, 145 and records of the practice of the Security Council are 



142 See 47 Department of State Bulletin, 723 (1962). 

143 Article 52(1) provides: "Nothing in the present Charter precludes the 
existence of regional arrangements or agencies for dealing with such matters 
relating to the maintenance of international peace and security as are appro- 
priate for regional action, provided that such arrangements or agencies and 
their activities are consistent with the Purposes and Principles of the United 
Nations." 

144 Article 2(4) provides: "All members shall refrain in their international 
relations from the threat or use of force against the territorial integrity or 
political independence of any state, or in any other manner inconsistent with 
the Purposes of the United Nations." 

145 Advisory Opinion of the International Court of Justice: Certain Expenses 
of the United Nations /1962/ I.C.J. Rep. 151. The most detailed statement of 
the "prior authorization" point appears in Meeker, "Defensive Quarantine and 
the Law," 57 A.J.I.L., 515 (1963), p. 520. 

Article 53(1) provides: "The Security Council shall, where appropriate, 
utilize such regional arrangements or agencies for enforcement action under 
its authority. But no enforcement action shall be taken under regional arrange- 
ments or by regional agencies without the authorization of the Security Coun- 
cil * * * » (Measures against an "enemy" state as defined in paragraph 2 of 
the Article are excepted. ) 



287 

offered to support the proposition that enforcement action is a 
response to an order to act. 

The spokesmen also argue prior authorization is not required by 
Article 53(1) and subsequent authorization is sufficient if an authori- 
zation of any sort is necessary. A subsequent authorization, they con- 
tend, was given impliedly by the Security Council when it considered 
and did not forbid the proposed Quarantine before action was taken 
by the Organization of American States. 

Deputy Legal Adviser Meeker urges, as part of his case for the 
United States, that extrahemispheric countries "such as the U.S.S.R. 
are not in a position to attack the organization's activities within the 
region" because the purposes and activities of the Organization are 
in conformity with the relevant provisions of the United Nations 
Charter. 146 He may suggest in this context that the Organization of 
American States enjoys exclusive competence, subject of course to 
intervention by the Security Council or recommendations by the 
General Assembly, to recommend and guide applications of force by 
its members within the geographical area denned by Article 4 of the 
Inter- American Treaty of Reciprocal Assistance (the Rio Pact). 147 

With respect to Cuba, the State Department case is strong. Cuba, 
however, was involved in the Quarantine principally as a potential, 
although receptive, launching pad for Soviet missiles: and the State 
Department arguments do not develop with clarity a theory to 
support applications of force against Soviet vessels upon the high 
seas. 

Deputy Legal Adviser Meeker points to the anomaly which would 
exist if the United States could destroy the missiles in Cuba by an 
air strike or invasion but could not use less violent means upon the 
high seas to interfere with the introduction of missiles into Cuba. 
This anomaly would exist if the United States did have authority 
for an air strike or invasion based upon the Council Resolution of 
23 October. 

It is by no means certain, however, that an application of force of 
this magnitude could be supported under the Resolution without a 
more acute threat of attack upon the United States from the Cuban 
bases. The Resolution of 23 October should be construed in the light 
of changing circumstances and cannot reasonably be taken as carte 
blanche for any degree of violent action however unnecessary and 
imprudent such action might be. The legality of such action, fortu- 
nately, was never put to the test. 

An argument is offered by Captain McDevitt, writing in the Navy 



146 See Meeker, ibid., p. 518. 

147 62 Stat. 1681 (1947) ; TIAS No. 1838. 



288 

J.A.G. Journal, for an application of force to Soviet vessels based 
upon a broad construction of the "local disputes" clause appearing in 
Article 52(2) of the United Nations Charter. 148 Captain McDevitt 
contends it may be reasonable to construe a "local dispute" as one 
arising within the geographical area over which a regional agency 
exercises authority even though states not members of the Organiza- 
tion are involved. This would bring the activities of the Soviet 
Union in the region described in Article 4 of the Eio Pact within 
reach of the regional agency. 

He also argues that the Quarantine may be considered a measure 
for "pacific" settlement of the dispute and not the "enforcement 
action" described in Article 53(1) of the Charter. 149 Captain 
McDevitt does not suggest a possible extension of the activities of 
the regional agency under Article 52(2) beyond the geographical 
area described in Article 4 of the Rio Pact. 

It may be urged, however, that power in a regional security orga- 
nization to resolve a dispute by pacific means should include compe- 
tence to deal with active elements of the dispute in any area in 
which the influence of its members can be applied. Permissive exer- 
cises of power (through recommendations and coordination) by the 
Organization of American States over nonmembers in areas beyond 
those described in Article 4 of the Rio Pact may perhaps be sus- 
tained on the theory that the local origin of the dispute confers this 
authority. 

There is a suggestion in the writings of Legal Adviser Chayes 
and Deputy Legal Adviser Meeker that this may be the direction of 
development of the analysis of the State Department in cases of this 
type. Mr. Chayes, for example, refers to the role of regional security 
agencies as increasingly important due to the creeping paralysis of 
the Security Council brought on by the veto. 

If, as a matter of constitutional development in world security 
organization, regional agencies will assume much the same function 
in regional disputes as the General Assembly and Secretary General 
have assumed in disputes of a global nature, it may be reasonable to 



148 McDevitt, "The U.N. Charter and the Cuban Quarantine," 72 JAG J., 71 
(1963). Captain McDevitt also offers an argument based upon collective self- 
defense. Article 52(2) provides: "The Members of the United Nations entering 
into such arrangements or constituting such agencies shall make every effort 
to achieve pacific settlement of local disputes through such regional arrange- 
ments or by such regional agencies before referring them to the Security 
Council." 

149 Captain McDevitt argues that under Security Council practice a measure 
is not enforcement action when armed force is not used — and emphasizes the 
presence of force without its use or direct application during the Quarantine. 



289 

view the reach of the regional organization in resolving local dis- 
putes by pacific processes as coextensive with that of the United 
Nations. The proposition is administratively sound. Whether the 
proposition will gain appreciable support is another matter, although 
sooner or later legal-constitutional developments tend to follow the 
path of administrative convenience. 

Professor Christol and Commander Davis find in the experience of 
the Quarantine the emergence of a "lusty new rule" providing an 
"additional and unique option within the continuum of 'Force in 
Peace','' allowing an "option of restrained coercion" which will avoid 
the drastic procedures and consequences built around the concept of 
" 'blockade' " and also "the strictures and uncertainties" of the pacific 
blockade. 150 In addition to the self-defense formula, Christol and 
Davis offer an argument resting upon the affirmative duty of states 
to maintain international peace and security by acting collectively 
as a regional security organization. 

While not divorced from a theory of collective self-defense, the 
Christol-Davis argument seems founded principally upon a duty to 
"police" violent international power exchanges. This duty may be 
institutionalized in Chapter I of the United Nations Charter. The 
inquiry has current importance because of the egregious failures of 
the Security Council as a peace enforcement institution. 

4. Law and the Draft Proclamation: Permissible and 
Impermissible Coercion 

Professor McDougal and Dr. Feliciano, in their comprehensive 
effort to give "aggression," "self-defense" and similar descriptions of 
coercive levels and exchanges, meaning for decision makers, rely in 
part upon the "just war" concept of the Spanish theologians. 151 
They relate conceptions of permissible and impermissible coercion to 
a defined general community goal denying value reallocations by 
intense coercion or violence. This relation is accomplished by the use 
of detailed operational indices keyed to the current structure of 
global and regional security organization. 

Assuming the element of coercion in the transaction is unques- 
tionable, which will ordinarily be the case when major armed 
strength is deployed, the permissible-impermissible "coercion" spec- 
trum affords a logical framework within which shifting facts can 
be fixed, appraised and rationally related. This analytical structure 

150 Christol and Davis, "Maritime Quarantine: The Naval Interdiction of 
Offensive Weapons and Associated Material to Cuba, 1962," 57 A.J.I.L., 531 
(1963). 

151 McDougal and Feliciano, Law and Minimum World Public Order, 121-260 
(1961). 



290 

is adaptable at decision-making levels normally associated with the 
execution of policies. At the same time, the system can be utilized 
by high-level policy makers, although its importance at this level, as 
suggested by Mr. Acheson, 152 is to ensure a rational relation of ob- 
servable facts and to induce insights into factual relationships. 

Working within the general framework of contraposed initiating 
coercion-self-defense contentions, McDougal and Feliciano describe 
areas in which facts may be found and evaluated to inform a 
decision maker. These areas include: (1) characteristics of the 
participants; (2) their objectives^ including the range and impor- 
tance of values sought ( "consequent iality"), and the degree of 
value sharing anticipated ("inclusiveness or exclusiveness") ; (3) 
"modalities" — which might range from the application of armed 
violence to less coercive techniques — such as those associated with 
economic warfare; (4) the effects secured — the effects produced 
in the value and institutional structure of the State upon which the 
questioned coercion has been exerted and the relation of the intensity 
of the coercive act to the intensity pattern of coercive exchanges 
between the states involved; (5) the degree to which community 
procedures for resolution of the conflict have been utilized or re- 
sisted; and (6) the power which can be mobilized to sustain a decision 
of impermissible coercion. 153 

Whether a self-defense claim for coercion is honored should 
depend, according to McDougal and Feliciano, upon the necessity 
and proportionality of the defensive action. The element of neces- 
sity turns upon the relative power of the states in conflict, the nature 
of their objectives, the importance of the values conserved and the 
reasonableness of the expectation of necessity. Proportionality, like- 
wise, will be based on method, objectives, values conserved and 
effects of the action. 

McDougal and Feliciano summarize coercive actions which they 
regard as "permissible." These fall into three categories. 

The most important because of the high intensity of coercion 
usually involved and concomitant general risk to nonparticipants, 
are the self-defensive coercion against a third state, based on the 
argument of continuing coercion by a principal opponent. Also less 
critical are assertions of temporary limited authority upon the high 
seas for defensive purposes. Such temporary limited authority 
might be asserted in nuclear tests, satellite recoveries, or a "Quaran- 
tine." 



152 (1963) Proc. Am. Soc. Int. Law, 13, 14. 

153 McDougal and Feliciano, Law and Minimum World Public Order, 167-206 
(1961). 



291 

In a second category are low-level intensity, nonself 'defense 
coercive exchanges endemic in international relations. 

Police measures applied by or under the authority of the organized 
community of states are in a third category. 

To these categories might be added a fourth, perhaps embraced by 
McDougal and Feliciano within their third category. Within this 
fourth category are enforcement actions of an interim and stabilizing 
nature taken by member states pending the decision of an appro- 
priate international organization. Such enforcement would be in 
voluntary discharge of the enforcer's obligations of membership. 
Action of this type has been discussed in Chapter III, Situation 3. 

This action may not be of a defensive nature. It bears an analogy 
to the interim action of an equity court familiar in Anglo-American 
law. 

Included also might be various servicing functions involving 
coercion, such as coercive gathering of evidence. This evidence might 
be for consideration by an international organization dealing with 
security matters 154 or for the use of a state decision maker faced 
with a possible application of intense coercion. 

a. ELEMENTS TO BE CONSIDERED IN REVIEWING 
DRAFT PROCLAMATION 

Unlike an analysis of the Cuban Quarantine of 1962, which 
can be undertaken with the advantage of hindsight, an analysis of 
the Draft Proclamation (set forth in Situation 6) relating to naval 
interdiction of biological munitions and facilities for their delivery 
must be based upon certain assumptions concerning the nature of 
the decisions necessary as the Proclamation is executed. How "rea- 
sonable," for example, will be applications of naval force in the 
"zone of surveillance"? 

A series of decisions will be involved — and any plan, no matter 
how carefully considered, can be executed illegally by officers who 
misunderstand or ignore it. In the Quarantine, the "persuasive" 
impact of United States policy was enhanced by moderate applica- 
tions of power coupled with efforts to obtain agreement with the 
Soviet Union. 

To the extent functions of "planning" and "operation" were not 



1&4 These actions, exemplified by the Anderson-Heyser U-2 sorties preceding 
the Quarantine, should be distinguished from the British effort to obtain evi- 
dence to support the Corfu Channel claim before the World Court, a "non- 
emergency" action not considered as "legal" under the circumstances by the 
Court. Corfu Channel Case, /1949/ I.C.J. Rep. 335 (1962). 



292 

performed by the President and his deputies, who maintained close 
control over the quarantining naval units, the legal burden rested 
principally upon the naval operator. Judicious use of law after the 
basic plan was formulated had much to do with the satisfactory 
result. 

Assuming the Proclamation will be executed obediently and 
diligently, what questions should be considered with a view to its 
revision? Stated in functional terms, the areas for appraisal in 
which law plays a part are these : 

(1) Is the plan persuasive? The problem of persuasion will begin 
with the President and will continue with the executive officers 
who will execute the Proclamation, with the United States electorate, 
our allies, officials of international organizations, and officials of 
Scythia and Nueva. The "legitimacy" of an act is a product of 
persuasion — since the collection of values and institutions we describe 
as law are in a process constantly of reconstruction. 

(2) Does the plan provide adequate guidance for executive 
officers who will carry it out ? The President is responsible nationally 
and internationally for establishing adequate guidelines and con- 
trols over administrative officials. Closely allied is the provision of 
adequate legal safeguards against personal liability of these ad- 
ministrative officials in the performance of their duties. Suppose 
a naval officer who executes the Proclamation falls into the hands 
of Scythian authorities. Does the Proclamation provide a basis for 
legal arguments in his defense? 

(3) Does the plan permit sufficient latitude of action for co- 
ordination of the United States economic thrust using naval force 
with reciprocating action by Scythia or Nueva? Interference with 
the shipment of biological munitions and means for their delivery 
is economic warfare employed as a primary policy device. There is 
no intention to overwhelm Scythia or Nueva by the use of armed 
force. 

This being so, it is in the interest of the United States to permit 
Scythian and Nuevan officials to determine United States intentions 
with clarity and to provide avenues of withdrawal to these officials 
when withdrawals are consistent with United States policy. Co- 
ordination, likewise, is closely related to persuasion, mentioned as 
a first area of appraisal of the plan. These areas will now be con- 
sidered in inverse order — roughly in the order of their importance. 

Coordination in the Proclamation 

The most essential requirement for coordination in economic action 
is action of a familiar and accustomed pattern. This enhances the 



293 

likelihood of a rational response by the opponent along predictable 
lines. Action to develop coordination is consistent with the concept of 
an "economic sortie." An economic sortie is usually most effective 
when the target anticipates the point of attack but for geographical 
or other reasons cannot offer an effective defense. 

The general plan of action in the Proclamation, just as the plan 
of action in the Quarantine of 1962, follows the accustomed outline 
of Pacific Blockade or "Pacific Contraband." Preferences seem 
expressed for applications of naval force limited in diversity, limited 
geographically, and limited in intensity. Scythia probably will not 
imply from the Proclamation tacit directives for general attacks 
upon Scythian vessels and supply lines. 

While Scythia cannot assume the President will be able to main- 
tain effective control over his executive officers under all circum- 
stances, this control probably can be maintained as in past trans- 
actions of this type. These judgments by Scythian officials may 
lead to a moderate rather than intense Scythian response. 

The Proclamation also suggests the coordinating powers of the 
United Nations are being invoked. Information will be collected to 
enable the United Nations to perform this task by the use of com- 
missions of inquiry or by use of other available" agencies. The 
International Red Cross was proposed as a fact-finder to determine 
removal of the missiles from Cuba. This organization might prove 
acceptable to the United States, Nueva and Scythia, to investigate 
the storage, experimentation with and use of biological weapons. 

It may be assumed the United States will furnish information 
concerning its activities and findings to the World Health Orga- 
nization and the Pan American Health Organization as well as 
to the Organization of American States to bring the influence of 
these organizations to bear in shaping Scythian and Nuevan 
responses. 

Guidance in the Proclamation 

The Proclamation in Situation 6 shares with the Proclamation 
issued in the Quarantine of 1962 minimum standards to guide 
executive officers. An executive officer must expect to engage in 
economic warfare under a plan assembled somewhat loosely by his 
superiors. 

The Proclamation in Situation 6, repeating the wording of the 
Proclamation of 1962, directs the general method by which vessels 
of any nationality may be intercepted and searched. It limits the 
use of force to the extent necessary to secure compliance with the 
directions of the President and the regulations and directions of 
the Secretary of Defense. 



294 

Unlike the Proclamation of 1962, the proposed Proclamation 
provides for the diversion of vessels for visit and search to points 
designated by the Secretary of Defense. This will relieve the 
intercepting officers at sea from the burden and hazard of searching 
for easily concealed and dangerous material. It will also permit an 
investigation in port using impartial witnesses. The Proclamation 
makes clear that the intercepted vessels are not to be seized as prize 
but are to be released when biological munitions and equipment 
found aboard are surrendered to the United States. 

While the proposed Proclamation relieves officers at sea from the 
necessity of action likely to stimulate conflict, it does not and 
cannot contain directions for all situations arising. Allowance must 
be made for: (1) lack of foresight by the policy maker; (2) mis- 
interpretation of instructions by the executive officer; and (3) the 
development of emergencies permitting no time for instructions 
by superiors. 

There is no way in which an executive officer can be excluded 
entirely as an effective decision maker. Facts are developed by an 
executive officer determining the direction of a later course of 
decisions by formal (legal) policy makers. 

It is therefore desirable to develop, as an incident to any policy 
such as that presented in the draft Proclamation, grounds for 
projected legal defenses of the executive officers involved. The pro- 
jected defenses, when known to the executive officer, serve indirectly 
as a form of guidance by providing principles of action to fill the 
interstices of the Proclamation and instructions issued thereunder. 

The draft Proclamation provides desirable machinery by which 
immediate judgments concerning the action of an executive officer 
can be rendered. The institutional controls under which he functions 
normally can provide these judgments in part and will exist no 
matter what the Proclamation provides. 

His naval superiors, for example, will appraise his action. His 
awareness of the predelictions of these officers serves as an effective 
guide. 

The Proclamation also contemplates diversion of vessels and 
custody of prohibited materials by the United States under cir- 
cumstances encouraging negotiation and the settlement of individual 
cases by agreement. Perhaps naval claims boards can be established 
to consider claims for economic loss occasioned by interceptions or 
diversions and provide opportunities for formal decisions concern- 
ing the conduct of executive officers in which persons other than 
naval decision makers can participate. 

These formal contemporaneous decisions are desirable to protect 



295 

the executive officer because the facts reviewed will be substantially 
those available to him. The interception of Trent by Captain Wilkes, 
discussed earlier in this book, 155 illustrates disadvantages arising 
from failure to obtain immediate formal settlement of issues pro- 
duced by naval interceptions. 

To minimize the risk of exposure of an executive officer to delayed 
prosecutions, it is desirable to develop in a "pacific blockade" or 
"contraband" proclamation a basis for an argument for immunity 
against prosecution for acts done pursuant to it. The act of state 
doctrine has been argued unsuccessfully in cases of war crimes and 
crimes against humanity. 

The only basis of immunity which appears available for develop- 
ment is that of an international official. The immunity of an inter- 
national official is based upon agreement and not custom. 156 

Hence it is desirable in the Proclamation to relate the proposed 
action of the United States to action by the United Nations Orga- 
nization. The Draft Proclamation does this in two ways. The Proc- 
lamation describes the action directed as of an interim, nature pend- 
ing action by the Security Council or other organs of the United 
Nations to preserve peace. Also emphasized is the intelligence func- 
tion of the naval action — the collection of information for prelim- 
inary action by organs of the United Nations. 

These interrelationships of United States policy with policies of 
the United Nations and the Organization of American States are 
discussed subsequently as they bear upon the element of "persuasion 
in the Proclamation. They can, however, be used also as the basis 
for an argument for immunity of United States officers either under 
Section 22 of the Convention on the Privileges and Immunities of 
the United Nations 157 or under the functional immunity provisions 
of Article 105(2) 158 of the United Nations Charter. 

The contention might be that the officer was a temporary official 
of the Organization performing its functions. The same argument 
can be offered if the officer acts pursuant to the instructions of a 



155 Chapter I, Fn. 29, et seq. 

156 See Hill, Immunities and Privileges of International Officials — The Expe- 
rience of the League of Nations (1947). 

157 See Yearbook of the United Nations, 100-103 (1946-47). Article 22 applies 
to "Experts * * * performing missions for the United Nations * * *." This will 
be the more difficult of the two provisions upon which to found an argument 
of immunity. 

158 Article 105(2) reads: "Representatives of the Members of the United 
Nations and officials of the Organization shall similarly enjoy such privileges 
and immunities as are necessary for the independent exercise of their functions 
in connection with the Organization." 



296 

regional organization with peace enforcement functions subject to 
the authority of the United Nations. 

Several problems are evident: (1) Can an effective argument be 
made that an officer acting as an "interim" functionary without 
express authorization by the United Nations is an expert or official 
of the Organization? (2) Will acts of a possible criminal nature be 
held ultra vires and beyond the proper functions of a representative 
of the Organization? (3) To what extent will immunity be rec- 
ognized by an international tribunal or by the courts of a state not 
a party to the convention or a nonmember of the United Nations? 
(4) Assuming functional immunity may be argued effectively under 
Article 105(2) how long will this immunity continue? The immunity 
based upon the Convention continues indefinitely. (5) Will the 
Secretary General waive immunity under the Convention? He ap- 
parently cannot waive immunity under the functional provisions of 
Article 105 (2) . 159 

Difficulties in developing immunity arguments to protect officers 
causing injuries to persons or property while carrying out their 
orders pursuant to the Proclamation are obvious. The Proclamation, 
however, in view of experience with delayed criminal prosecutions 
since World War II, should lay the foundations for immunity 
arguments which might be offered. 

Persuasion in the Proclamation 

The most important feature of the Proclamation to which legal 
considerations are relevant is its persuasive impact. The major dif- 
ficulty is to distinguish "justification," which tends to be retro- 
spective and subjective, from the prospective and objective persuasive 
elements rendering legal institutions effective policy implements 
and policy guides. 

Differing concepts of law and of the requirements of a legal order, 
as in all East-West conflicts, complicated the problem of persuasion 
in the Quarantine of 1962. Because the problem of persuasion was 
complicated, with many different audiences requiring different 
approaches in argument, Western spokesmen tended to fall back 
upon arguments urging the "necessity" and thus "justification" for 
the arms interdiction. 



159 Discussions of related issues may be found in Hill, Immunities and Privi- 
leges of International Officials — The Experience of the League of Nations, 58-75, 
101-119 (1947) ; Kunz, "Privileges and Immunities of International Organiza- 
tions," 41 A.J.I.L., 828 (1957) ; Preuss, "Diplomatic Privileges and Immunities 
of Agents Invested with Functions of an International Interest," 25 A.J.I.L., 
694 (1931). 



297 

b. SELF-DEFENSE AND COLLECTIVE SELF-DEFENSE 

The legal basis of the Quarantine of 1962 preferred by most 
commentators upon the subject appears to have been the necessity 
of self-defense or collective self-defense. 160 As an abstract legal 
proposition, it has been generally accepted that a state may resist 
by employing force proportionate to an imminent threat to its 
territorial integrity or political independence. 161 The decision to 
employ force must be reasonable under the circumstances attending 
the threat. Provisional or interim decisions to use force for defensive 
purposes seem admissible when the necessity is clear to the state 
officials responsible for acting and the decision made and executed 
conforms to the United Nations Charter. 

The Draft Proclamation in Situation 6 suffers from the disad- 
vantage that no Eesolution of the Organization of American States 
can be used to support it. Quite probably, if the policy expressed 
in the Draft Proclamation is accepted by the President, efforts will 
continue to secure the support of that Organization. 

But since the naval action proposed is intended in part to pro- 
duce intelligence which might induce the Organization to act, it 
will be imprudent to delay action pending a resolution of support 
by the Organization as was done in the Quarantine of 1962. 

This difficulty will limit the use of arguments such as those 
advanced by officials of the State Department to support the 
Quarantine. 162 Required instead will be arguments to support 
initially unilateral action by the United States. 

The Executive Committee advising the President concerning the 
Quarantine of 1962 was clearly persuaded to reach its judgment 
and render its advice by factors in addition to law. This should 
not obscure, however, the very significant function of law as an 
institution for persuasion. To the extent law does become relevant in 
decisions of this nature, in which values of a civilization are at 
stake, the persuasive function of law is its dominant function. This 
function dominates from the factual analysis and discussions pre- 
ceding the authoritative or basic decision through the network of 
decisions involved in its execution. 



160 See Fns. 137-141, supra. 

161 Eloquent expositions of the customary doctrine with supporting records of 
practice may be found in Bowett, Self-Defense in International Law, 8-27 
(1958) ; Brownlie, International Law and the Use of Force by States, 251-79 
(1963) ; McDougal and Feliciano, Law and Minimum World Public Order, 217- 
32 (1961). See also Stone, Legal Controls of International Conflict, 243-246 
(1954) where the self-defense doctrine and its possible limitations by Article 51 
of the United Nations Charter are considered. 

162 See Fns. 140, 141 supra. 



298 

At the basic policy-making level, for example, when the President 
makes his decision concerning the Draft Proclamation, the persuasive 
function of law is confined in the main to legal analytical method 
to be applied in selecting the appropriate means to attain the 
desired end. This end is maximum feasible preservation of the 
physical and other values of people with whom the decision maker 
identifies. 

Acceptance of this end is coerced — both by formal allocations of 
responsibility in domestic constitutional provisions and by practical 
allocations of power within the political system. 

The identification also is coerced, although an identification 
pattern is difficult to maintain due to diverse pressures upon the 
decision maker. The effective end and the formal identification are 
"nonnegotiable." 

In a selection of means the decision maker may be persuaded. It is 
convenient at this level of policy making to persuade in a contra- 
posed initiating coercion-self-defense context such as that set forth 
by Professor McDougal and Dr. Feliciano. 163 

The difficulty arises as the policy is carried into execution. In 
this context, the arena in which legal processes of persuasion must 
be employed is broadened. Thirty years ago the reactions of one's 
allies, acquaintances and enemies could be disregarded in action of 
the type carried out in the Quarantine of 1962 and contemplated 
in the Draft Proclamation. Today, favorable responses from the 
officials of these states may determine the success or failure of limited 
coercion. 

Unhappily a paradox exists. The self-defense (or collective self- 
defense) formulae, meaningful in a formulation of the basic policy 
and in obtaining domestic support for it, are less persuasive to 
officials who consider themselves removed from the value dislocations 
in the conflict or who consider their values so implicated that a 
defense by the United States carries a direct physical threat to 
them. The problem is one of perspective — sometimes of abstraction 
or detachment — sometimes of involvement — but in each case an 
egocentric reaction. 

It was difficult, for example, for some of the leaders of new states 
in the third or fourth rank of powers at the time of the Quarantine 
to accept the unwillingness of the United States to rely solely upon 
discussions before the United Nations to solve its problem of 
defense. If the United States, as its propaganda suggested, could 
batter Cuba into a necklace of smoking and toxic lagoons lying 

163 See McDougal and Feliciano, Law and Minimum World Public Order 
(1961). 



299 

generally between the Florida Straits and the Windward Channel, 
why provoke the Soviet Union by naval interference with its ship- 
ping? 

The value placed by the United States upon human lives and 
the responsibility for avoiding nuclear war which rested upon its 
officials could not be appreciated fully by officials in other states 
in which the well-being of citizens beyond the official class was not 
a major value. These officials might view an enemy simply as an 
object for destruction. Their unverbalized concepts of "self-defense" 
might be narrow. 

The unverbalized concept of self-defense presents a special prob- 
lem — varying somewhat from culture to culture — depending upon 
the concept of the "self." The unverbalized concept of self-defense 
of the decision maker to be persuaded by legal "defense" arguments 
might be appraised and his response harmonized with the goal 
sought by a policy advocate by the play of relevant facts within 
his attention frame. 

Where the unverbalized concepts of self-defense (the unstated 
ethical limits imposed upon action to preserve life) are mutual, 
defensive arguments are most effective. When Secretary Webster 
presented his well-known, and embarrassingly narrow, argument 
concerning permissible self-defense to Lord Ashburton in the 
Caroline}** he simply refurbished an argument with which he had 
probably dealt in homicide cases as a trial lawyer a dozen times in 
the courts of New Hampshire and Massachusetts. He could be 
confident the British would accept his formula because the idea was 
derived from British common law. The differences that arose were in 
applying the formula to the facts. 

It is easy for the official unwilling to support a state offering a 
self-defense argument to articulate reasons for rejecting it on factual 
grounds. All viable states seek values. In this sense they act offen- 
sively. Any viable state will maintain a positive or offensive front 
against all out-groups while seeking (defensively) to minimize 
internally the conflict this offensive action against out-groups 
produces. 

This does not mean that a state assumes the offensive with all 
policies or that all offensive policies are coercive. No state com- 



164 2 Moore, Digest, 217, at 412 (1906) : "Undoubtedly it is just, that, while 
it is admitted that exceptions growing out of the great law of self-defense do 
exist, those exceptions should be confined to cases in which the 'necessity of 
that self-defense is instant, overwhelming, and leaving no choice of means 
and no moment for deliberation'." 



300 

mands the values permitting coercive offensive action along its 
entire policy spectrum at any given time. 

An active expenditure of values, the expenditure increasing with 
emphasis upon coercion, must be supported by policies tending to 
conserve values. Policies directed principally, although not neces- 
sarily exclusively, to the conservation of values, tend to be described 
as defensive. Policies directed principally, although not necessarily 
exclusively, to the acquisition or destruction of values possessed by 
another state tend to be described as offensive. 

When this descriptive framework is used, no state, even the most 
lawless in its international relations, can be said to act wholly 
offensively or not in self-defense. To the unreceptive decision 
maker, the self-defense argument is a "rope of sand" — since this 
decision maker can always point to offensive features in actions 
primarily defensive. 165 



165 A matter also to be considered, but one not disturbingly pressing at the 
present time, is the cyclic linkage of defense with virtue and offense with vice 
which can be observed in the history of Western Europe and America. The 
specialist in rectitude or other molders of opinion have at times put forward 
coercive aspects of offense as a virtue when either the value position of the 
actor is threatened or a goal to enhance that position attained effectively by 
coercion is offered or defined. 

The refurbishing of offensive action to develop a patina of respectability 
affects profoundly the thinking of the masses these leaders influence. To cite 
the experience of the Roman Church in Western Europe — the virtues of 
defense or preservation of the status quo were preached as the Church struggled 
to consolidate its hold on values inherited from the ancient Roman State. The 
man of the medieval world was exhorted to bear his many afflictions, physical 
and political, with grace and fortitude in the hope of a more congenial spiritual 
future. 

The rebel, the heretic, the challenger of convention — the "man on the offen- 
sive," found the doors of medieval society, dominated by the Church, closed 
to him. 

Faced by internal political division and under the pressure of secular rulers, 
the Church later sponsored or encouraged a series of crusades in which offensive 
policies were dominant. The medieval misfits, the "men on the offensive," now 
often valued crusaders, found a temporary abode in the religious military 
establishment. This same offensive power was later directed to the internal 
ordering of the Church as the Crusades drew to a close with once valued 
crusading orders, such as the Templars, coercively liquidated. 

There may now be in the making a reorientation of American opinion con- 
cerning offensive action. The general acceptance and support of the Quarantine 
of 1962 may be a manifestation of this changing viewpoint. 

For over fifty years the people of the United States have enjoyed a preferred 
value position. Not only has this preferred value position inculcated in the 
electorate an abounding regard for the status quo, but mass communications, 
driving home to Americans their not entirely explicable position upon an island 



301 

This difficulty in the use of self-defense arguments in persuasion 
to implement the execution of a policy such as that proposed in the 
Draft Proclamation, suggests the need for coupling self-defense 
arguments (which are most persuasive when directed to the basic 
decision maker and the persons he represents) with arguments 
which appeal to "detached" or "involved" officials in other states. 

Self-Defense and Collective Self-Defense Applied 
to the Draft Proclamation 

Analyzing the Draft Proclamation and the facts stated in Situa- 
tion 6 in a "self-defense" perspective, assuming action by the United 
States will be unilateral, and using the specific criteria related to 
"necessity" and "proportionality" described by McDougal and 
Feliciano, 166 a stronger legal case can be made for the action con- 
templated in the Draft Proclamation than for the action conducted 
in the Quarantine of 1962. 

Little data is presented in Situation 6 concerning the power of 
Scythia. Assuming Scythian power is comparable to that of the 
Soviet Union, and it has a thermonuclear as well as a biological 
warfare capability, the necessity of United States action is urgent. 
The proportion of its coercive response by naval force to the initiat- 
ing coercion by Scythia is reasonable. While the area of zone of 
surveillance embraces Nueva, the naval action contemplated is against 
Scythian provision of biological munitions and the means for their 
delivery. 

The action by the United States tends to conserve its values. 
Specifically and immediately the major value sought is physical 



of plenty amidst want, have stimulated guilt complexes of a type conducive 
to defensive psychology. 

There are signs of a growing restlessness. An interest in offensive action 
increases as the value position of the United States in rectitude, respect, 
affection, power and even wealth is eroded by the effective implementation of 
demands in other areas of the world. 

As specialists in violence, military and police, gain ascendency, the importance 
of offensive military action, as contrasted with defensive-holding strategy, is 
likely to be promoted. It is a fair assumption that if changes of this sort occur 
both at the "grass roots" and also in influential political echelons, the changes 
will be reflected also in nonmilitary judgments such as in voter or judicial 
decisions concerning the "legality of offensive action." 

A trend of this type occurred in France prior to World War I when the 
offensive psychology, advocated in the military environment by Grandmaison 
and Foch, permeated beyond the military confines into French domestic 
politics and foreign policy. 

166 See McDougal and Feliciano, Law and Minimum World Public Order 
(1961). 



302 

well-being of its citizens. Due to the difficulty of containing the 
effects of biological weapons, demonstrated by Scythian experiments 
at Farrago and the apparent Nuevan attack upon Antioka, the United 
States action has an inclusive objective. The United States acts to 
conserve the values of peoples in the Caribbean area and perhaps 
an indefinite area beyond that designated for the operations of the 
United States naval forces. 

Values of Scythia are unaffected in any appreciable sense by the 
United States action. The Scythian effort to extend its values, 
particularly power, may be frustrated by the United States action 
contemplated. But existing Scythian values are not diminished. 

The action may work to the advantage of inhabitants of Nueva 
by limiting the introduction into that territory of biological weapons. 

Although a biological attack by Nuevan units might not cripple 
the United States, in the sense that a thermonuclear attack could 
destroy vital population and communication centers, the precise 
impact of biological weapons cannot be estimated in advance. The 
physical well-being of its citizens is a major value sought through 
in the organization of any state. The obligation of a state to protect 
this value from erosion by disease, and the network of mutual 
obligations among states to limit the spread of communicable 
diseases, have been recognized since the 17th century. The obligation 
has been expressed in modern Sanitary Conventions since 1851. 

The action contemplated by the United States is naval action 
with an economic objective — interrupting a flow of offensive material 
to and from Nueva. With a resort to pressure in diplomacy by 
posing a threat of biological attack, Scythia has injected an element 
of coercion which cannot be met in any effective sense without 
countercoercion. 

Sea police or quarantining forces, typically coast guard or customs 
units, are used routinely in enforcing sanitary regulations. In this 
instance the breach of sanitary regulations threatened is massive 
and concerted. Using naval force on the high seas to meet this 
threat is the minimum exercise of a long settled and traditional 
right and obligation to repel disease. 

The action, furthermore, is similar to pacific blockade or "pacific 
contraband/' There is nothing deceptive in the interception of bio- 
logical munitions and means for their delivery which might tend 
to provoke a major Scythian counterstroke. The pattern of United 
States action is settled and familiar — as was the naval interception 
in the Cuban Quarantine of 1962. 

Tight control can be maintained over the naval units. The ship 



303 

and aircraft commanders will be familiar with international legal 
doctrine pertaining to their duties. 

Alternatives to the action contemplated are direct diplomatic 
negotiations or negotiations through the United Nations. Attacks 
also may be made upon the biological munitions depots in Nueva 
or the trawlers by which the munitions are delivered or both. These 
attacks might be launched by Antiokan forces with United States 
logistical support or by units of United States Strike Command. 

If the latter forces are employed, an assault might be made by 
airborne units upon the depots. This assault would have to be coupled 
with neutralization of Nuevan armed forces in the area. The trawlers 
can be destroyed by United States naval forces if necessary. 

The difficulty of the Organization of American States in reaching 
a decision concerning Nuevan biological warfare suggests the limita- 
tions upon diplomatic negotiation under these circumstances. Probes 
other than by reconnaissance aircraft are needed to furnish informa- 
tion upon which negotiations can proceed. 

There is no indication that economic pressures, such as trade 
restrictions, will have appreciable effect upon Salvaje. 

The use of direct armed violence against the trawlers or against 
the munitions depots might bring a similarly violent response from 
Scythia. Such attacks by the United States are undesirable unless 
an attack upon the United States is imminent. 

Interference with both the buildup of supplies of biological 
munitions in Nueva and the deployment of delivery means is the 
most effective means to lay the groundwork for settlement of the 
problem through negotiation. It is also the most moderate use of 
force to attain this end. Such action by the United States is propor- 
tionate to the initiating coercion. 

The reasonableness of the expectation of necessity by United States 
decision makers will lend force to the persuasive element of law in 
the situation. Has the basic decision maker (the President in this 
case) considered and interrelated the facts bearing upon the con- 
frontation? Will other decision makers conclude he has given the 
proper emphasis to the proper facts? Or will they conclude he had 
ignored or has not had access to facts which should have been con- 
sidered? What deference has been given to legal institutions such 
as treaties to which the United States is a party and the obligations 
of international organizations of which the United States is a 
member? An initial decision concerning the necessity of the action 
by officials of a threatened state may be made; but this decision is 
subject to reappraisal in a general community perspective by other 
decision makers. 



304 

The National Security Council has reviewed the Scythian threat 
against a background of experimentation with and active use of 
biological weapons by Nueva and Scythia. Scythia may be subject 
to no international legal obligation to refrain from the use of bio- 
logical weapons in actual warfare or the deployment of delivery 
means for diplomatic pressure. However, the use of these weapons, 
which Scythia may contemplate, is in direct conflict with the demand 
of the general community to limit the spread of disease. Certainly, 
Scythia and Nueva have violated their obligations under Article 
2(4) of the United Nations Charter by a threat of force against the 
territorial integrity and political independence of the United States. 
Sufficient facts provide the basis for an estimate that biological 
weapons will be used by Scythia and Nueva against the United 
States if an opportunity is afforded. 

Article 51 of the United Nations Charter 

To what extent does Article 51 of the United Nations Charter 
(1) limit the defensive action which may be taken by a decision 
maker when the necessity is reasonably found to exist, or (2) 
qualify the degree of necessity which the decision maker must find 
before action is taken? Two approaches can be made in construing 
Article 51. 

The intention of the parties to the Charter at the time of ratifica- 
tion may be sought. Guides in the search for this intention may 
include records of discussions as the Charter was prepared at 
Dumbarton Oaks and San Francisco and the wording of Article 51. 
Most lawyers and political scientists favor this traditional approach 
in construing Article 51 — although these commentators differ in 
the context which they will consider in determining intent. 

Alternatively, in a manner alien to the normal legal method in 
construing instruments, Article 51 can be construed to implement 
the work of the kind of institution the United Nations has become 
in the General Community. This current role is not one foreseen by 
the original members. A functional construction places little em- 
phasis upon the intention of the parties in 1945 and relies instead 
upon the character of the current operations of the Organization. 

Committee compromises and legislative statesmanship combined 
to produce in Article 51 general statements of the initiating and 
reciprocating coercion upon which the Article focused. The basic 
limitation on the use of force, keyed to objectives or ends denied 
when sought by forceful means, was established in Article 2(4) of 
the Charter. 

Article 51 was introduced into the Dumbarton Oaks draft at 



305 

San Francisco to accommodate the demands of states without per- 
manent membership on the Security Council. These apprehended 
embarrassment of their possible defensive measures by the veto. 
They wished to insure their ability to rely upon regional security 
arrangements such as those envisioned in the Act of Chapultepec 167 
and the Pact of the Arab League. 168 

In 1945 the form which these regional security arrangements or 
nonregional alliances might take was speculative. Also no one could 
know whether the Security Council would or would not measure 
up to its peace preservation responsibilities. Consequently, ambiguity 
in Article 51 was then and is now a positive virtue. It was a type 
of shelter which would enable members to survive the wreckage of 
the Organization if this in fact occurred. 

Most of the difficulty arising under Article 51 as applied to the 
United States action in the Cuban Quarantine of 1962 and as it might 
be applied to the action contemplated in the Draft Proclamation 
in Situation 6 derives from assumptions: (1) that all measures of 
self-defense or collective self-defense are keyed to "armed attacks" 
and (2) that "armed attack" has a limited or special meaning. 

Professor Quincy Wright and several other commentators have 
construed the words "armed attack" narrowly to exclude the prior 
planning of an attack and the "threat" of force. 169 Until the armed 
attack is "actual," presumably when missiles are launched and 
armed forces are deployed and in motion, there can be no military 
response in self-defense or collective self-defense. Professor Wright 
seems to conclude that defensive measures not involving military 
action are permissible against threats of force less than armed 
attack. 170 

The usual legal approach to the interpretation of any treaty, 
charter or statute, however, is that any word is "ambiguous." The 
interpreter can look to an extent to the extrinsic circumstances to 
find its meaning. 

As stated by McDougal and Feliciano : 171 



167 IX Hudson, International Legislation, 283 (1942-45) No. 647. 

168 ibid., 300, No. 650. 

169 Wright, "The Cuban Quarantine," 57 A.J.I.L., 546 (1963); Wright, "The 
Cuban Quarantine," (1963) Proc. Am. Soc. Int. Law, 9; Standard, "The United 
States Quarantine of Cuba and the Rule of Law," 49 A.B.A.J., 744 (1963). See 
Kunz, "Individual and Collective Self-Defense in Article 51 of the Charter of 
the United Nations," 41 A.J.I.L., 872 (1947) ; Nincic (Reply) in Schwarzen- 
berger, "Report on Some Aspects of the Principle of Self-Defense in the Charter 
of the United Nations" (International Law Association, 1958), 68. 

170 Wright, "The Cuban Quarantine," 57 A.J.I. L., 546, 563 (1963). 

171 McDougal and Feliciano, Law and Minimum World Public Order, 234 
(1961). 



306 

* * * /N/either Article 51 nor any other word formula can 
have, apart from context, any single 'clear and unambiguous' 
or 'popular, natural and ordinary meaning' that predetermines 
decisions in infinitely varying particular controversies. 
All the relevant variables of the particular context should be con- 
sidered. 

Nothing will be found in the wording of Article 51 to indicate 
with clarity the meaning of "armed attack" or the corollary inherent 
right of individual or collective self-defense. Meanings assigned 
to these categories in a particular context must be derived from 
other provisions of the Charter, from events contemporaneous 
with the drafting and ratification of the Charter, and from super- 
vening experience in interstate and international organizational 
relationships to the time of interpretation. 

It has been argued that Article 2(4) of the Charter is an absolute 
prohibition on the use of force for any purpose, that any use of 
force was to be authorized by the Organization, and that the right 
of individual or collective self-defense is retained subject only to 
the permissive ambit of action permitted in Article 51. By this view, 
self-defense is now the exception, and its scope depends upon the 
interpretation of Article 51. 172 

This position is derived from a misinterpretation of Article 2(4). 
This Article refers to initiating coercion — threats against the ter- 
ritorial integrity or political independence of a state or in a manner 
inconsistent with the Purposes of the United Nations or action by 
force to attain these prohibited ends. 

A basic prerequisite to continuation of the Organization, as of any 
political group, is security of its members. This is expressed in 
Article 1(1) of the Charter. With a diminished right of individual 
or collective self-defense, the security of members of the Organiza- 
tion would be jeopardized. 

The point is clarified when the obligations of members versus 
nonmembers of the Organization are considered. Article 2(4) appears 
to extend to a threat or use of force against a nonmember. Article 
51, on the other hand, does not apply to a nonmember; and it is 
difficult to construct a theory upon which parties to the Charter 
could limit the inherent right of self-defense of a nonmember. 
In Article 35(2) there is an implication that obligations of pacific 



172 See Brownlie, International Law and the Use of Force By States, 272- 
275 (1963) where the various arguments are spelled out in detail. Professor 
Brownlie concludes at page 275, somewhat equivocally, that " * * * Article 51 
is not subject to the customary law /of self-defense/ and that, even if it were, 
this customary right must be regarded in the light of state practice up to 1945." 



307 

settlement are not binding upon nonmembers unless these are ac- 
cepted in advance for the purpose of a particular dispute brought 
before the Security Council. Could the draftsmen of the Charter 
or the ratifying states have intended to discriminate against a 
member by putting it to disadvantage in its security relations with 
a nonmember? 

Consider the current position of the Soviet Union vis-a-vis Com- 
munist China or West Germany. It seems generally conceded that by 
the customary law under some circumstances there is an anticipatory 
right of self-defense — the right of a "preemptive strike." A number 
of commentators have argued stoutly that no such anticipatory right 
exists under Article 51. 173 If these commentators are correct can 
Article 51 be taken as the exclusive source of the "inherent" right 
of self-defense of a member? An affirmative answer would seem to 
derogate from a basic purpose of the Organization. 

The rights of self-defense and collective self-defense of members 
and nonmembers must be the same for the rational administration 
of any system of peace enforcement. Members may agree to refrain 
from initiating coercion, as they have done in Article 2(4) while 
no such obligation is sought to be imposed by the Charter upon 
nonmembers. 

Professor Bowett, 174 McDougal and Feliciano, 175 and others 176 
consider a customary right of self-defense to exist apart from 
Article 51. Professor Stone appears to share this view, although he 
doubts the existence of a collective self-defense doctrine as part of 
the customary rule. 177 

Indeed, differences as to the precise limits of the customary doc- 
trine at any particular time complicate all interpretations of Article 
51. 178 Differences also exist as to the degree, if any, the provisions 
of Article 51 qualify the customary rules. 



«a iud., 275-278. 

174 Bowett, Self -Defense in International Law, 184-185 (1958). 

175 McDougal and Feliciano, Law and Minimum World Public Order, 232-241 
(1961). 

176 E.g., Goodhart, "The North Atlantic Treaty," /1951/ Recueil des Cours 
(II) 187, 192; Seligman, "The Legality of the U.S. Quarantine Under the 
United Nations Charter," 49 A.B.A.J., 142 (1962) ; Waldock, "The Regulation 
of the Use of Force by Individual States in International Law," /1952/ 
Recueil des Cours (II) 455, 496-498. 

177 Stone, Legal Controls of International Conflict, 243-246 (1954). 

178 Professor Brownlie, for example, takes the position that if an international 
legal custom of self-defense operates in conjunction with Article 51, this custom 
must be that which existed in 1945 rather than that existing in 1920 or earlier. 
Assuming clear distinctions can be made between elements of the custom at 
these various dates, it is somewhat curious to consider that the operation of 



308 

The records of preparatory work on the Charter concerning both 
Article 51 179 and Article 2(4) 18 ° indicate an intention to retain 
the customary doctrine with no enhancement of the degree of neces- 
sity by the inclusion of Article 51. Furthermore, at the time of both 
the Dumbarton Oaks and San Francisco discussions an "armed 
attack" was generally understood as a process by which the initiative 
was seized by violent physical power applied by air, land or sea 
forces. The survival of the people attacked depended upon their 
ability to seize the initiative by an armed counterattack. 

World War II demonstrated repeatedly at the Maginot Line, 
Bataan, Warsaw and Stalingrad that no defending force can hold 
a point indefinitely under the fire of modern weapons. 

The "armed counterattack" was the key link in the problem of 
escalation — the major concern of the Security Council in preserving 
peace. 

No Charter authority was necessary to authorize establishment of 
minefields or other obstacles to vessels, vehicles or personnel. 

The likelihood is that the individual and collective measures 
mentioned in Article 51 were armed attacks which could be mounted 
only to counter an "armed attack." The customary principles of 
individual and collective self-defense continued to operate as to 
defensive measures, military or not, whether an armed attack was 
made or not. 

There remained to the member states a spectrum of coercive acts 
to be applied for defense, whether military means were employed 
or not. There is no basis for an assumption that all defensive 
measures are keyed in Article 51 to "armed attacks"; that a military 
defensive response is by reason of its military aspect a defensive 
measure keyed to armed attack; or that an armed attack "occurs" 
only when missiles are launched or forces deployed and set in motion 
against an enemy. 

In reconciling Article 51 with action taken in the Quarantine of 
1962 and the action proposed in the Draft Proclamation, it is un- 



any custom other than that considered to exist when the question requiring 
interpretation of the Charter arises would be relevant. The current content 
of the custom, the requirement of necessity and proportionality, for example, 
is determined by contemporary weapons systems, strategies, tensions and simi- 
lar physical factors as well as by treaties in addition to the United Nations 
Charter. See Brownlie, International Law and the Use of Force by States, 275 
(1963). 

"9 12 U.N.C.I.O. 680-2 ; Goodrich and Hambro, Charter of the United Nations, 
297-9 (2d Ed., 1949). 

i 80 Report of Committee 1 to Commission I, 6 U.N.C.I.O. 446, 459; Verbatim 
Minutes of Fifth Meeting of Commission I, 6 U.N.C.I.O. 202, 204, 



309 

necessary to rely upon a doctrine of anticipatory self-defense, 
although this element of the self-defense doctrine would appear to 
be preserved by Article 51 when an armed attack is recognized as 
a process (an interacting chain of events) rather than a single event. 
Such a construction seems mandatory in an era of missile, nuclear 
and biological warfare. 

The naval action contemplated in the Draft Proclamation is not 
an armed counterattack. It is an application of power by military 
means to limit a threat of force and permit the working of persua- 
sive processes. The fact that an application of military power is 
involved, far from infringing some unwritten prohibition in Article 
51, insures instead close administrative control of the naval units 
and a consciously proportionate response. Neither the doctrine of 
necessity as relevant to the Draft Proclamation nor the naval means 
for executing the plan appear to be modified by Article 51. 

The amount of conflict which has arisen concerning Articles 2(4) 
and 51 and their bearing upon self-defense and collective self- 
defense, suggests the weight of the burden resting upon lawyers 
who seek to develop meanings from words using techniques applied 
in the treatment of domestic commercial instruments, statutes and 
constitutions. 

In the current and continuing state of flux in the power, efficiency 
and influence of global and regional security institutions, one cannot 
assume that canons or principles of construction (or even the 
premises underlying construction) can be applied rationally under 
conditions approaching constitutional chaos in the international 
arena. 

It may be, for example, that the same techniques for construc- 
tion should not be used for all articles of the United Nations 
Charter. Those dealing with trusteeships and economic and social 
problems might be treated differently from those dealing with 
peace maintenance. 

This is not in keeping with the well-settled approach that con- 
struction of a statute, treaty or charter should seek intent and that 
the construction should be unitary — that is, the articles should be 
construed to stand together, in relation to each other, and the same 
principles of construction should be applied potentially to any 
article. 

The argument for casting aside traditional techniques in dealing 
with the peace maintenance articles of the Charter is believed to 
rest upon two conditions. 

First, is the shift in the peace -protecting functions of the United 
Nations from "policing" and "enforcement" to "rheostatic activity." 



310 

The dominant peace preservation function, as understood in 1945, 
has been implemented by the subsidiary function of "intensity re- 
duction" and not principally by the subsidiary functions of in- 
vestigation, adjudication and enforcement. The latter three functions 
are by no means unimportant, particularly in uncommitted areas 
where efforts are made to avoid conflict among the major powers, as 
in the Congo. But even in these cases it seems quite clear that enforce- 
ment action by the global organization in no way approaches the 
potential efficiency of enforcement by a regional security organiza- 
tion in which a single powerful state may assume leadership. 

A second condition is development of a skein of practice in almost 
a half century of experience with international security organiza- 
tions which furnishes a basis for an accurate judgment of the degree 
of intensity in coercive exchanges which these international "rheo- 
stats" can accommodate. The basic problem is one of escalation of 
violence. 

An element of myth inheres in discussions of escalation of violence 
by apprehensive commentators upon the perils of nuclear armament. 
Among major nuclear powers with modern military communications 
and adequate control over their military striking forces, the chance 
of an escalation of violence beyond a stage desired by the opposing 
decision makers is approximately zero. A major armed strike by 
one of these nuclear powers against the other, involving the delivery 
of major conventional or nuclear demolitions, will be met by an 
equally devastating response. 

But the major problem involving escalation is presented among 
powers of the second or third range — for example, between Red 
China and India; Pakistan and India; the Arab States and Israel; 
Algeria and Morocco ; and Indonesia and Malaysia. It is among these 
states that the significant peace enforcement problems of the United 
Nations and regional security organizations presently arise and will 
continue to arise in the foreseeable future. 

A workable rough rule of thumb for permissible coercion under 
the United Nations Charter involves two features: 

(1) The first is an estimate of the concomitant ability of the 
world organization and the supporting regional security organiza- 
tions to diffract the physical features of the coercive exchange and 
project the conflict on a verbal level. An accurate judgment can be 
rendered on this point by a decision maker with even modest in- 
telligence resources. 

(2) The second is cooperation with the United Nations or regional 
security organizations in moderating the intensity of coercive ex- 



311 

changes and in altering the nature of the exchanges to develop 
persuasive features. Coercion is presumptively permissible when 
the first feature is satisfied and impermissible when not. The action 
following the decision to coerce, the second feature, is critical in 
supporting or rebutting the presumption raised. 

Articles 2(4) and 51 when construed in the light of the functional 
approach suggested, set maximum and minimum limits upon in- 
creases and decreases in permissible coercion. Implicit in the formula 
is the proposition that reduction in the efficiency of the global and 
relevant regional security organizations as "coercive rheostats" re- 
duces the ambit of permissible coercion. Increases in the efficiency 
of these organizations increase the permissive area for coercion. 

Lewis Carroll would have been pleased with the idea of a munici- 
pal police system in which the gravity of crimes depended upon the 
efficiency of the police. This would throw personal liberties in any 
constitutional system into limbo — and confuse the police as well. If 
the police were weak, a parking ticket would be a heinous offense, 
although nothing much would be done about it — with a Gestapo, 
a murderer might be reprimanded. 

With contemporary international security systems, however, we 
no longer deal principally with police or with crimes until we reach 
the "particularization" of law to the lower echelon decision maker. 
Instead, at the higher operating levels we deal principally with 
rheostats moderating coercion. An approach such as the one sug- 
gested, which would clearly create chaos in a well articulated legal 
order, may create order under conditions approaching chaos. 

The formula also embraces a tacit double standard. Given the 
same degree of efficiency of the global and relevant regional orga- 
nizations major nuclear powers will enjoy a greater range of per- 
missive coercive practices than powers lacking the internal controls 
to prevent an escalation of violence. This treatment, however, is no 
more arbitrary than that current in some world circles. Violent 
seizures by ex-colonies of the territories of colonial powers are 
tolerated. Reprisals by the "losing" state are characterized as ag- 
gressions. 

By the formula suggested a maximum limitation upon coercion 
is set by Article 2(4) of the United Nations Charter. Despite a 
decrease in the efficiency of global and regional organizations, or 
the operation of the double standard, force cannot be threatened 
or used against the territorial integrity or political independence 
of any state or in any manner inconsistent with the purposes of the 
United Nations. Functionally, coercive exchanges meeting the test 
of the first feature of the formula would appear to be "peaceful" 



312 

means used as described in Article 2(3) "in such a manner that 
international peace and security and justice, are not endangered." 

Despite an increase in the efficiency of these organizations, the 
self-defense safeguard, individual or collective, in Article 51, permits 
an adequate coercive reaction to meet an "armed attack." 

Treatment of this sort does not, of course, eliminate the need for 
determining the meaning of "armed attack" in Article 51 when 
responsive action of a high intensity of coercion exceeds the "rheo- 
static efficiency" of the global and regional security organizations. 
The treatment simply resets the relevance of Articles 51 and 2(4) 
in the light of the currently dominant security function of the 
world and regional bodies. 

Using this approach in construing Articles 2(4) and 51, the 
coercive action in the Quarantine of 1962 was well within the 
permissive range. The United Nations demonstrated its ability, 
largely through the office of the Acting Secretary General, to mediate 
the dispute and secure a resolution of the issues by persuasion. This 
result was facilitated by the close cooperation of the United States 
with the United Nations. Assuming moderation in executing the 
policies expressed in the Draft Proclamation, the Draft also is 
compatible with Articles 2(4) and 51. 

The rule of thumb suggested places emphasis upon three of the 
several criteria offered by McDougal and Feliciano in their char- 
acterization of "aggression" and "self-defense." These are the "in- 
clusiveness" or "exclusiveness" of the objectives of the participants 181 
and the willingness of the participants to accept community pro- 
cedures for the settlement of their differences, 182 both being em- 
phasized in the second feature of the rule of thumb; and expecta- 
tions about the effectiveness of community decisions, 183 emphasized 
in the first feature. 

Because of the speed in the making of decisions usually required 
to develop maximum coercive effect, a series of simple standards, 
if these play down the ultraindividualistic element in self-defense — 
although clearly falling short of a comprehensive analysis, may 
serve as an effective guide at a high-policy level. Perhaps the co- 
ordinating functions of the standards are superior to a more com- 
prehensive statement of criteria in which multiple elements provide 
greater latitude for difference. With respect to decision makers who 
believe themselves removed from the threat calling for a coercive 



181 McDougal and Feliciano, Law and Minimum World Public Order, 182 
(1961). 
is 2 Ibid., 203. 
is 3 Ibid., 206. 



313 

response, the persuasive function perhaps is performed more ef- 
ficiently than when "self-defense is emphasized." 

WHO and the Health Regulations 

Apart from Articles 2(4) and 51 of the United Nations Charter, 
the only treaty provisions bearing upon the legal "persuasiveness" 
of the Proclamation policy are the WHO Health Regulations. 184 
These Kegulations are a unique treaty form. 

The World Health Assembly, consisting of representatives of 
members of the World Health Organization and meeting at regular 
intervals, considers International Health Regulations drafted by an 
appropriate body of WHO with the assistance of the Secretariat. 
Upon adoption by the Health Assembly, the Regulations are notified 
by the Director-General to the governments of the member states. 
After the expiration of a fixed period, three months in Health 
Regulations No. 2, now in force, the Regulations are binding upon 
a state which does not reject or file reservations to them. No reserva- 
tion offered is valid unless accepted by the World Health Assembly. 

Current Health Regulations No. 2 have three salient features: 

(1) The Regulations are aimed principally at a group of "quarantin- 
able" diseases — plague, cholera, yellow fever, smallpox and typhus. 

(2) The quarantine measures set forth in the Regulations are the 
maximum which a state may apply. (3) The administration of the 
Regulations is decentralized to regional and national health ad- 
ministrations. 185 

The Regulations have no specific security escape clause such as 
may be found in GATT. The sanitary measures specified are to be 
taken in the territory of the state which applied them. The Regula- 
tions state that sanitary measures shall be applied by a state to any 
ship which passes through its territorial waters without calling at 
a port or on the coast. 186 There is no provision authorizing inter- 
ference with vessels on the high seas for sanitary reasons. 

Article 28 permits the health authority of a state to prevent the 
discharge or loading of cargoes or taking on food or water at a port 
or airport by a vessel or aircraft which is infected by an epidemic 
disease other than the "quarantinable" disease "in the case of an 
emergency constituting a grave danger to public health." It is 
possible that an argument of limited viability might be constructed 
upon this Article for interceptions of vessels upon the high seas 



184 WHO Official Records, No. 37, p. 329 (1952). 

185 See Berkov, The World Health Organization, A Study in Decentralised 
International Administration (1957), passim. 

186 Health Regulations No. 2, Art. 32(1). 



314 

with a purpose of shore contact. The argument would be similar 
to the "hovering" argument urged in cases of revenue and im- 
migration enforcement. 

The most satisfactory approach, however, is to argue the Regula- 
tions are developed to reconcile the demand for security and physical 
well-being unimpaired by the quarantinable diseases with the demand 
for a free flow of commerce. Trawlers prepared to deliver con- 
taminated aerosols from a range of 600 miles are not commercial 
vessels within the purview of the Regulations or engaged on a 
commercial mission. The Regulati6ns do not contemplate intentional 
initiations of epidemics; nor are mutants of quarantinable diseases 
developed for the purpose of warfare the quarantinable diseases to 
which the Regulations apply. 

A self-defense exception seems readily implied in the Regulations 
when the difficulty of detection of attack is as great as in biological 
warfare and the opportunities are limited for successfully control- 
ling epidemics produced by mutants once these epidemics are 
initiated. 

It is quite probable that the Health Regulations, instead of pre- 
senting an obstacle to the policy contemplated in the Draft Proc- 
lamation, can be used to supplement the measures initiated by the 
United States in response to the Scythian and Nuevan threats. 
Notices concerning intelligence gathered during the proposed inter- 
ception should be furnished to the World Health Organization 
pursuant to Part II of the Regulations. This epidemiological in- 
formation will then be disseminated among the members. 

Likewise, the World Health Organization may be used as a 
source of intelligence to aid in determining Scythian and Nuevan 
intentions. If Nueva can be designated as an infected local area, the 
quarantine provisions which then may be put into force against its 
vessels and aircraft and supplement to a limited extent the naval 
pressure exerted against shipments of biological weapons and the 
means for their delivery. 

Interim Action to Preserve the Status Quo 

As a persuasive device to be offered in addition to arguments 
keyed to self-defense or possibly collective self-defense, an argument 
presenting the action as an interim status quo preserving technique 
should be addressed to decision makers not involved directly in the 
conflict but who possess the power to embarrass execution of the 
United States policy. This argument has been developed in detail in 
Chapter III {Situation 3). 

The interim action contemplated is narrower than the "policing" 
concept offered by Christol and Davis in their analysis of legal 



315 

problems in the Quarantine of 1962. 187 The interim action suggested 
is noncompetitive with the peace maintenance functions of the 
United Nations and is progressively reduced as the influence of the 
world organization is brought to bear. 

The concept is one of a power implied in every political or legal 
system — namely the use of force formally or informally organized 
to forestall intensive coercion until an authoritative community 
decision can be rendered. In this context, for example, the action 
of the United States in Lebanon and in the Quarantine of 1962, in 
both cases harmonized with the peace maintenance efforts of the 
United Nations and contributing to that effort, compares favorably 
with the Anglo-French action in Suez in 1956 during which Security 
Council action was blocked by a British veto. 

Applying the interim action concept to the Draft Proclamation, 
the action taken will have to be keyed carefully to any action taken 
by the United Nations. Information obtained in intercepting vessels 
carrying biological weapons or equipment for their delivery will 
have to be supplied promptly to the Security Council or the General 
Assembly. The argument is one to be advanced as the Proclamation 
is executed and its effectiveness will hinge upon the prudence and 
moderation with which the policies of the Proclamation are carried 
out. 

The Draft Proclamation requires no revision and the President 
may be advised to approve it. 



187 Christol and Davis, "Maritime Quarantine : The Naval Interdiction of 
Offensive Weapons and Associated Material to Cuba, 1962" 57 A.J.I. L., 525, 
537-539 (1963). 



CHAPTER V 

ECONOMIC WARFARE AS 
A SECONDARY POLICY DEVICE 

INTRODUCTION 

When economic warfare is waged as a secondary policy device in 
support of military operations, military requirements dictate the 
choice of economic warfare forms and techniques. Protracted harass- 
ment was emphasized in World Wars I and II because required by 
the military situation. 

The web of naval-administrative control devices characterizing 
Allied economic warfare in both world wars is described in this 
book as NAY AD blockade. NAY AD blockade is an extension and 
refinement of contraband controls and controls over enemy property 
supplemented by various techniques to prevent land shipments 
by neutrals to the adversary. Features of NAY AD blockade are 
considered distributively in the materials in this Chapter. 

Naval officers figured prominently in NAY AD blockades, al- 
though mainly in the interception and diversion of suspected vessels 
rather than in contributions to economic warfare policy or to the 
law governing it. Their opportunities to make or influence basic 
economic warfare decisions were limited when compared to op- 
portunities provided them when economic warfare is waged as a 
primary policy device. Their "policy voices" were muted and in 
some phases of economic warfare, silenced, by belligerent practices 
to centralize the administration of economic warfare and to control 
potentially hostile shipments at source. 1 

But the economic warfare practices of World Wars I and II may 
not be repeated in their same form. In general wars involving em- 
ployment or threat of employment of ultradecisive weapons, the 
techniques of NAY AD blockade familiar in the two global conflicts 
may be substantially altered. In these, or in "limited" wars, economic 
warfare by "economic sortie" rather than by "protracted harassment" 
may be dominant. The military aspects and requirements of wars 
differ so radically that general assumptions and certainly precise 

1 See Fitzmaurice, "Some Aspects of Modern Contraband Control and the 
Law of Prize," 22 Brit. Y. B. Int. L., 73 (1945). 

317 



318 

predictions about the form of economic warfare as a secondary policy 
device tend to be quite idle. 

The Discussions in this Chapter are based upon General Situation 
7 and four Special Situations. The economic warfare operations are 
first conducted unilaterally by the United States (a Naval Blockade, 
considered in Special Situation 7 A) and are then extended as the 
conflict increases in intensity through enforcement action undertaken 
by the Organization of American States in which the United States 
participates. Contraband (Special Situation 7B) ; Ultimate Destina- 
tion and related problems (Special Situation 70) ; and Maritime 
Enemy Property Control (Special Situation 7D) ; are considered in 
this context of multilateral-regional security action. The entire action 
occurs with a backdrop of pending major conflict involving NATO. 
This impending conflict requires the United States to husband its 
naval resources. 

General Situation 7 is followed by a summary of major sources 
of legal doctrine pertinent principally to economic warfare sup- 
porting military operations and an introductory analysis of "neu- 
trality." The reader will find it helpful to examine these before 
considering the Special Situations. 

A. SOURCES OF LEGAL DOCTRINE IN ECONOMIC WARFARE 
AND THE PROBLEM OF NEUTRALITY 

General Situation 7 

The Zone of Surveillance proclaimed by the President in Situation 
6 was established and the naval action within it executed as directed. 
Two trawlers, equipped with aerosolizing devices, and having aboard 
aerosols tentatively identified as containing Melioidosis-B bacteria, 
have been intercepted and diverted to Key West. Disposition of the 
vessels, both formerly Scythian trawlers, now of Nuevan registry, 
is undecided. 

During operations in the Zone of Surveillance, a revolt occurs in 
The Peoples Republic of Carthage, a Scythian ally. Scythia inter- 
venes to suppress this revolt by military force, contending the revolt 
was organized by the unconventional warfare service of a NATO 
member. The threats against this member by Scythia are considered 
so serious that most units of United States STRIKE Command are 
committed to Europe in support of NATO. Numerous naval units 
are withdrawn from the Zone of Surveillance and transferred to the 
United States Sixth Fleet. 

Salvaje takes advantage of this reduction of United States 
strength immediately available for commitment against him to 



319 

land troops in Antioka. Assisted by a local revolutionary, Hernando, 
Salvaje overthrows the Gondomar government. Marshal Gondomar, 
with his principal officers, are flown to the United States from 
Coloso. They are recognized by the United States as the Antiokan 
government-in-exile. 

Attacks then occur against United States merchantmen along the 
Louisiana and Texas coasts by motor torpedo boats. Four tankers 
are sunk with forty -two crewmen lost. 

One motor torpedo boat is destroyed and its crew captured by 
U.S.S. Buchanan. The crewmen are identified as Nuevan naval 
personnel. They have been ordered to make selective attacks upon 
United States shipping in reprisal for interception and diversion of 
the two Nuevan trawlers now held at Key West. 

To forestall further attacks from Nueva or Antioka without com- 
mitting air or ground forces until the degree of support required 
for NATO is determined, the President determines to place Nueva 
and Antioka under naval blockade. Congress has approved the 
President's decision by Joint Resolution. The case of the United 
States has been placed before the Security Council with a draft 
resolution for action against Nueva and Antioka under Article 42 
of the Charter. The Organ of Consultation of the Organization of 
American States has before it a proposal for action against Nueva 
and Antioka under Articles 3 and 8 of the Rio Pact. 

Admiral Brown, Commander Second Fleet, issues the following 
declaration of blockade pursuant to orders of the President: 

DECLARATION OF BLOCKADE 

At 2400 hours, Greenwich time, 3 June 19__, the coasts and ports 
of the islands of Antioka and Nueva will be placed by order of the 
President of the United States under blockade by United States 
naval forces under my command. Neutral vessels or aircraft seeking 
ingress will be permitted to pass if carrying cargoes of medical 
supplies or food only. Such vessels having obtained ingress will be 
permitted egress if in ballast or without cargo. Vessels, surface or 
subsurface, or aircraft, seeking ingress will transit waters or super- 
jacent airspace in the area delimited by * * * [description, by lon- 
gitude and latitude] * * * on routes indicated upon the attached 
chart. [Chart omitted.] 

Neutral vessels and aircraft which are in the blockaded region at 
the time of this Declaration are given a period of grace expiring at 
2400 hours, 6 June 19__, in which to depart the area blockaded. 
This period of grace is granted upon the express condition that 
neutral vessels and aircraft departing the area blockaded do not 
violate the law of nations. 



320 

All means authorized by international law and by treaties with 
neutral powers to which the United States is a party will be enforced 
by the United States against surface or subsurface vessels or air- 
craft attempting to breach this blockade. 

A surface or subsurface vessel approaching the blockaded area will 
be warned by the commander of the intercepting United States 
naval vessel. This warning will be indorsed on the register of the 
vessel. 

Aircraft will be instructed by radio to proceed to the nearest ap- 
propriate landing area under United States control where an 
appropriate entry of the warning will be made upon the log of the 
aircraft. 

If such vessel or aircraft again attempts to enter or leave the 
blockaded area, with the exceptions hitherto noted in this Declara- 
tion, the vessel or aircraft will be seized and sent to the nearest con- 
venient port of the United States for such proceedings against the 
vessel or aircraft and its cargo as may be deemed advisable. 

Vessels which cannot be searched conveniently at sea and all air- 
craft will be diverted for search to ports to be designated by the 
blockade commander. Subsurface vessels encountered in the block- 
aded area will be warned to surface by exploding four harmless 
underwater charges, accompanied by the sonar signal IDKCA. 
Submarines so warned will surface on an easterly course. 

Given on board the U.S.S. Columbia at long. , lat. at 0900 

2 June 19__. 

The Secretary of State has notified diplomatic representatives of 
the President's order and the Declaration of Blockade. Consuls in 
Antiokan and Nuevan ports have been similarly notified. Informa- 
tion concerning the Declaration has been broadcast by the Navy at 
intervals to vessels and aircraft. 

Having examined the Declaration, you are now considering the 
sources of law likely to bear upon the conduct of United States and 
other naval units and are trying to determine the status to be ac- 
corded naval units other than those of Antioka and Nueva. What 
are the major sources of doctrine? Should vessels other than An- 
tiokan or Nuevan be considered "neutral"? 

Discussion : General Situation 7 

1. Sources of Doctrine: Economic Warfare at Sea as Secondary 
Policy Device 

Many of the legal doctrines, or past community policy expressions, 
applicable to economic warfare at sea, are derived from custom. This 
custom developed sporadically — principally in the Napoleonic Wars, 
the American Civil War and World Wars I and II. Much of the 



321 

custom is found described in the decisions of prize courts and in 
national prize legislation. 

Several multilateral international transactions are also sources of 
legal doctrine applicable to sea economic warfare. The most im- 
portant of these are the Declaration of Paris, 1856, 2 and the "un- 
ratified" Declaration of London, 1909. 3 Several conventions formu- 
lated at the Hague in 1907 bear in part upon economic warfare at 
sea. 4 The 1949 Geneva Convention relating to Civilian Persons in 
Time of War 5 and several other of the 1949 Conventions 6 bear to 
a limited extent upon maritime economic warfare practices. 



2 See Naval War College, International Topics and Discussions, 1905, 
109 for preamble and full text. 

3 See Naval War College, International Law Topics, 1909, for general report 
and text. 

4 IV Convention Respecting the Laws and Customs of War on Land and 

5 6 UST 3516, TIAS 3365, 75 UNTS 287. 

6 For texts of The Conventions see Naval War College, International Law 
Documents, 1950-51. 

Annex (containing several provisions relevant to blockade, particularly NAVAD 
blockades) 36 Stat. 2277, TS 539, II Malloy, 2269; V Convention Respecting 
the Rights and Duties of Neutral Powers and Persons in War on Land (con- 
taining provisions relevant to NAVAD blockades) 36 Stat. 2310, TS 540, II 
Malloy, 2290; VI Status of Enemy Merchant Ships at the Outbreak of Hostili- 
ties. (Not signed by United States delegates or ratified. Denounced by Great 
Britain in 1925.) 

VII Convention Relative to the Conversion of Merchant Ships into Warships 
(not signed by United States delegates or ratified) ; VIII Convention Relative 
to the Laying of Automatic Submarine Contact Mines, 36 Stat. 2332, TS 541, 
II Malloy, 2304 ; IX Bombardment by Naval Forces, 36 Stat. 2351, TS 542, II 
Malloy, 2314 ; X Convention for the Adaptation to Maritime Warfare of the 
Principles of the Geneva Convention of July 6, 1906 (replacing for the United 
States and most of the other contracting parties a similar Convention of 1899 
applying the 1864 Geneva rules), 36 Stat. 2371, TS 543, II Malloy, 2326; XI 
Convention Relative to Certain Restrictions with Regard to the Exercise of 
the Right of Capture in Naval War, 36 Stat. 2396, TS 544, II Malloy, 2341; 
XIII Convention Concerning the Rights and Duties of Neutral Powers in Naval 
War (ratified by the United States with reservations. Not ratified by Great 
Britain. Generally regarded as expressing customary rules), 36 Stat. 2415, TS 
545, II Malloy, 2352. 

Ill Convention Relative to the Opening of Hostilities, 36 Stat 2259, TS 538, 
II Malloy, 2259 is of diminished importance under the aegis of the United 
Nations and in the light of contemporary power practices. XII Convention 
Relative to the Creation of an International Prize Court was signed by the 
United States delegates but not ratified. 

No international prize court was established and the modern blockade and 
other economic warfare techniques render the prospect for such a court remote. 
All of the Hague Conventions of 1907 may be found conveniently set forth in 
Naval War College, International Law Situations, 1908, 117-248. 



322 

Special conventions, such as those applicable to the Suez 7 and 
Panama 8 Canals, deny a belligerent right of blockade of the canals 
at least as to parties to the conventions. The Pan American Maritime 
Neutrality Convention, 9 signed at Havana in 1928, and ratified by 
the United States with reservations, establishes as between the 
American signatories a comprehensive neutrality code bearing 
directly upon blockade practices. Part IV of the London Naval 
Treaty of 1930 10 states "established rules of International Law" 
applicable to submarine attacks on merchant shipping. Numerous 
conventions of limited scope and bilateral treaties indirectly bear 
upon blockade practices. 

The Declaration of Paris of 1856 n stemmed from a modus vivendi 
developed between Britain and France as part of their Crimean War 
alliance. 12 Four points are set forth in the Declaration. As a con- 
cession to the British, privateering was abolished. A neutral flag 
was stated to protect noncontraband enemy goods, and neutral 
goods not contraband were stated to be immune from capture al- 
though under an enemy flag. Directly applicable to blockades of the 
nineteenth-century type was the statement: "Blockades, in order 
to be binding, must be effective, that is to say, maintained by force 
sufficient really to prevent access to the coast of the enemy.* * * " 13 



7 Convention of Constantinople (1888), Art. I, 15 Martens, NRG 2d Ser. 557. 
♦4 * * * L e Canal ne sera jamais assujetti a l'exercice du droit de blocus." 
(Germany, Austria-Hungary, Spain, France, Great Britain, Italy, Netherlands, 
Russia, and Turkey were parties. ) 

8 Treaty to Facilitate the Construction of a Ship Canal (Hay-Pauncefote 
Treaty) (1909), Art. Ill, 32 Stat. 1903, TS 401, I Malloy, 782. The United 
States adopted the Rules of the Convention of Constantinople in substance as 
the basis for neutralization of the proposed canal. 

Article 111(2) states: "The canal shall never be blockaded, nor shall any 
right of war be exercised nor any act of hostility be committed within it. The 
United States, however, shall be at liberty to maintain such military police 
along the canal as may be necessary to protect it against lawlessness and 
disorder." 

Stipulations of the Hay-Pauncefote Treaty were applied to the Panama Canal 
in Convention for the Construction of a Ship Canal (Hay-Bunau Varilla 
Treaty) (1903), Art. XVIII. For the difficulties arising in the passage of ships 
in time of war through these international waterways among others, see Baxter, 
The Law of International Waterways, 187-244 (1964). 

9 47 Stat. 1989, TS 845, 135 LNTS 187. 

10 46 Stat. 2858, TS 830, 112 LNTS 65. The text of this treaty will be found 
in Naval War College, International Law Situations, 1930, 139, (Part IV at 
159). 

11 See Fn. 2, supra. 

12 See Malkin, "The Inner History of the Declaration of Paris," 8 Brit. Y. B. 
Int.L., 1-44 (1927). 

13 The French rendition of this provision is : "Les blocus, pour §tre obliga- 



323 

The four parts of the Declaration were stated by the declarants 
to be inseparable. Other states were invited to accede to the Declara- 
tion; and all significant maritime states have done so except the 
United States. 

When President Pierce expressed his objections to the British 
and French proposal in 1854, the United States did not contemplate 
the creation of a large navy yet cherished a long-standing grievance 
against both France and England for seizures of private property at 
sea during warfare. Consequently, President Pierce was prepared 
to renounce privateering only if all noncontraband private property, 
including that owned by citizens of belligerents, whether or not under 
an enemy flag, should be exempt from seizure. 14 

With the development of a large navy by the United States and 
the gradual extension of the scope of contraband lists by belligerents 
in World Wars I and II, the objections voiced by President Pierce 
are no longer viable. The United States applies the provisions of the 
Declaration without accession. 

The London Declaration, 1909, 15 unlike the Declaration of Paris, 
1856, contained a provision for ratification as well as for adherence 
by powers not represented by the London Conference. 16 Article 68 
of the Declaration provided for effectiveness only upon ratification. 

The British House of Lords failed to approve the declaration and 
Great Britain failed to ratify. Since Great Britain was then the 
major naval power, and had called the Conference, the other dec- 
larants refused to ratify also. 

The Declaration was accepted by the belligerents in the Turco- 
Italian War of 1911 and the Balkan Wars of 1912-13 and was 
applied by the British and French with certain additions and mod- 
ifications at the beginning of World War I. 17 After three further 
modifications, 18 the decision to apply the Declaration directly was 

toires, doivent 6tre effectifs, c'est-a-dire, maintenus par une force suffisante 
pour interdire reellement l'acces du littoral de l'ennemi." The English ''prevent" 
is not, of course, an exact translation from "interdire" and this has produced 
difficulty in applying this rule of the Declaration. 

14 See Naval War College, International Law Topics and Discusssions, 1905, 
111-112. 

15 See Fn. 3, supra. 

16 Germany, United States, Austria-Hungary, Spain, France, Great Britain, 
Italy, Japan, Netherlands and Russia were represented at the Conference. 

17 Order-in-Council (Declaration of London No. 1) 20 Aug. 1914, 108 Brit, and 
F. St. P. (Pt. II), 100 (1914). A convenient statement of this and the four 
subsequent Orders-in-Council relative to the Declaration of London may be 
found in Smith, The Law and Custom of the Sea, 246-252 (3d Ed., 1959). 

18 Order-in-Council (Declaration of London No. 2) 29 Oct. 1914, 108 Brit, and 



324: 

withdrawn with a decision announced to exercise belligerent rights 
"in strict accordance with the law of nations." 19 

Provisions were inserted in the Order concerning facts to raise a 
presumption of hostile destination required for condemnation of 
contraband articles; expressly extending the doctrine of continuous 
voyage to blockades; clarifying the unneutral service doctrine to be 
applied to a neutral vessel carrying contraband which proceeds to an 
enemy port despite the destination shown on her papers; and pro- 
viding for capture and condemnation of a vessel carrying contra- 
band if — by value, weight, volume or freight — the contraband forms 
more than half the cargo. 

Despite failure of the Declaration of London of 1909 to develop 
as the basis of a formal legal regime for naval war, the rules rep- 
resent a consensus concerning blockade, contraband, unneutral serv- 
ice and enemy character among major sea powers in the early 
twentieth century. Had the House of Lords approved the Declaration 
and Great Britian ratified, it seems generally agreed that other 
participants in the London Conference would have followed suit. 

Some provisions of the Declaration, particularly those relating to 
contraband, contained a built-in obsolescence element rendering them 
useless in World Wars I and II. The theme emphasized in the 
Declaration, the importance of safeguards for private property at 
sea, may render the Declaration principles entirely inapposite in 
any future naval contest with Communist powers or in contests in 
which the navies of merchant shipping of these countries become sig- 
nificantly involved. 

The Hague Conventions of 1907, because of their general par- 
ticipation clause, were not technically in force in World Wars I and 
II. But prize courts of several countries and international tribunals 
have pointed out that the Hague provisions may reflect accurately 
an existing and binding custom. 

One cannot assume, of course, that the discovery and application 
of legal doctrine from either custom or treaty will provide a certain 
standard by which contemporary community characterizations of 
economic warfare at sea will be guided. One obvious difficulty is 
presented by the breakthroughs in physical sciences leading to im- 
provements in naval hardware. 

F. St. P. (Pt. II), 156; Order-in-Council (Declaration of London No. 3) 20 Oct. 
1951 (Abrogating Art. 57 of Declaration of London which states that neutrality 
of a vessel is determined by flag she is entitled to fly) 109 Brit, and F. St. P., 
344 (1915) ; Order-in-Council (Declaration of London No. 4) 30 March 1916, 
110 Brit, and F. St. P., 173 (1916). 

19 Order-in-Council (Declaration of London No. 5 — Maritime Rights Order) 
7 July 1916, 110 Brit, and F. St. P., 236 (1916). 



325 

Some important developments since the Declaration of London 
are in subsurface vessels and aircraft and in electronic scanning 
devices and nuclear power. These improvements are conducive both 
to the effective establishment and breaking of blockades and to the 
efficient carriage and efficient interception of contraband. Controls 
by governments over their internal economies have vastly expanded. 
State trading and interlocking private business arrangements present 
special problems in determining enemy character. 

These and other difficulties will be considered distributively in 
discussions of the various Special Situations. However, embedded 
in all doctrinal sources from which viable policy standards might be 
developed is an analysis of belligerent "rights" in terms of "neutral 
rights and obligations." 

The concept of neutrality has at all times been shifting and 
elusive. This might be expected when one attempts to deal with a 
physiological process of withdrawal from conflict by applying legal 
norms developed to regulate participation. 20 Yet it is important to 
understand how neutrality is used in economic warfare at sea. Thus 
the subject of neutrality will now be examined prior to a detailed 
treatment of specific economic warfare problems. 

2. Neutrality and Eonomic Warfare at Sea 

Several preliminary and provisional generalizations may be based 
upon the troubled history of neutrality in sea warfare. 

(a) "Neutrality," while used to describe a complex of claims 
stemming from military conflict, typically characterizes a limited 
withdrawal from conflict by an avowed nonparticipant. Seldom is 
the withdrawal complete. Some contact is maintained by the non- 
participants (neutral) with one or more of the participants (bel- 
ligerents) . 

(b) Nonparticipants (neutrals) tend to assert a legal status quo. 



20 The general thrust of legal development has been the creation of legal 
institutions to maintain a dynamic balance in the flow of values within a 
community. To maintain this balance, most legal techniques have been directed 
to moderating the pace of change within the community by orderly methods for 
resolving conflict and controls over the results of conflicts. 

In primitive communities, there is little concern with the withdrawer from 
conflict — he takes his chances without the protection of kindred or tribe. In 
more highly organized communities, all withdrawal phases become of increased 
importance — being enforced (as in imprisonment or exile) stabilized (as in 
quarantine for disease) or prevented (as in penalties for desertion from the 
military services or sleeping on guard duty). It has proved much simpler to 
deal with the basic problems which legal institutions were first developed to 
solve — cases of physical injury or business disagreement — than to use these 
institutions to maintain or break the cords of community contact. 



326 

The tendency is to rely almost exclusively upon past expressions of 
legal doctrine for guidance. The strategic position of the neutral 
(in a legal sense) essentially is defensive. The initiative and factual 
perspective of the nonparticipant tend to be sharply limited. 

(c) Participants tend to hold the legal initiative in dealing with 
conflict withdrawals. Participants, however, labor under the dis- 
advantage of ambivalence in applying legal institutions. To accom- 
plish their economic warfare objectives, participants incline towards 
an aggressive formulation of novel neutrality doctrines. At the same 
time, participants seek stability in much neutrality doctrine with a 
view to their future nonparticipation in conflict. 

The neutrality policy of the United States has changed directions 
in the past like a weather vane in an uneasy wind. As a participant 
in conflict, the United States has been a leader in formulating new 
restrictions upon neutrals. As a nonparticipant the United States 
insists with equal vehemence upon the vitality of neutrality doctrine 
of the past. 

Operation of the factors briefly outlined in (a) through (c) has 
invited chaos in international law concerning withdrawals from 
conflict. Part of this impending chaos stems from basic limitations 
upon the use of legal institutions for policy guidance. The chronic 
obsolescence of legal doctrine has been mentioned repeatedly in 
earlier discussions in this book. Obsolescence is accentuated in with- 
drawal problems by the strikingly sporadic formulation of neu- 
trality law. 

From the perspective of the participant, three immediate objects 
tend to be involved in applications of neutrality law. The withdrawal 
must be (1) forced; (2) stabilized; or (3) prevented. 

In past naval warfare at sea emphasis has rested upon forcing 
complete withdrawals through the interception of commerce of 
nonparticipants and by other pressures. Emphasis may well rest 
in the future upon stabilizing or preventing withdrawals. In nuclear 
warfare, for example, nonparticipants may be carefully cultivated by 
the participants in a manner which will expand the participation of 
a neutral state rather than the contrary. 

Each claim to nonparticipation or limited participation in con- 
flict, whether or not couched in neutrality terms, tends to be sui 
generis. A premium for each decision maker lies in the development 
of a maximum span of multidimensional factual perspective relevant 
to opposed participation and nonparticipation claims in each con- 
frontation. 

Basic to an analysis of claims to participation and nonparticipa- 
tion in armed conflict is discrimination between the pattern of factual 
interaction, the claims asserted by the participants and nonpar- 



327 

ticipants and the flow of authoritative decisions which bear upon 
these claims. This discrimination is especially useful when dealing 
with economic warfare used as a secondary policy device. In these 
cases, facts relevant to opposed economic claims are often obscured 
by glaring military requirements. 

Pattern of Interaction Between Participants And Nonparticipants : 

General Conditions for Action 

The pattern of interaction among participants and nonparticipants 
in the economic sphere reveals much stability in practice since 
World War I. There is a prospect of future major evolution in 
practice due to the rapidly changing general conditions by which all 
international processes for coercion are affected. These general con- 
ditions furnish a background for all decisions in current conflict 
contexts and thus will be considered briefly. 

The current power environment is characterized by rapid erosion 
of the post- World War II bipolar power structure. The pattern is 
one of withdrawal from the shelter afforded by the superpowers — 
the United States and the Soviet Union. Such a withdrawal is per- 
mitted by the military stalemate produced by a temporary balance 
in nuclear armament. 

This process is demonstrated by the growing spirit of independ- 
ence among Soviet satellites, the breakdown of European colonial 
structures, and frequent challenges to the influence of the United 
States in Latin America. Pronounced strains have been experienced 
in NATO. "Neutralist" countries seek competing economic assis- 
tance from the United States and the Soviet Union. Red China has 
made a bid for leadership within the Communist and uncommitted 
worlds. There is no likelihood that this trend of withdrawal from 
the central arena of struggle between the United States and the 
Soviet Union will be reversed. 

These withdrawals from the central arena of conflict have not 
been accompanied by withdrawals from conflict generally. To the 
contrary, the withdrawing nations have exhibited a belligerent spirit. 
In any future major war, these aggressive postures may be expected 
to offset a trend towards withdrawal from military violence. Ex- 
tensive economic contacts may be claimed with belligerents. Many 
of the states in the process of withdrawal currently are nonviable 
economically. The continued economic contact with sources of 
materials and technology will be critical. The probability is that these 
nations will appear as active proponents of neutral rights while 
being peculiarly susceptible to economic coercion. 

Contraposed to this general pattern of withdrawal is the orga- 



328 

nization in the United Nations of a world community structure. This 
structure rejects as a premise the prerogative right of a sovereign 
state to engage in warfare and postulates a viable administrative 
structure by which recourse to force will be held at a minimum and 
persuasive practices in interstate relations encouraged. A principle 
of minimum order is established which members of the organization 
and less comprehensive organizations are committed to support. 

When, by the processes for authoritative decision within com- 
prehensive organizations of this nature, a state is deemed to resort 
to coercion "illegally,*' member states no longer are entitled to treat 
participants in the conflict impartially. They must discriminate 
and award differential treatment to the combatants. 

A possible escape for the withdrawer lies in incompleteness of the 
pattern of commitments." The involvement of nonmembers in armed 
conflict is a typical example. The commitment may be argued as 
inoperative in a case in which both the Security Council and the 
General Assembly fail to act to preserve peace. 

These routes for evasion, coupled with the trend toward with- 
drawal or noncommitment, have contributed to expectations that 
differences between states will be solved by violence and interven- 
tion by comprehensive security organizations will prove ineffective. 
A condition tending to weaken these expectations is the preparedness 
of the United States, and other states with an interest in inter- 
national order, to act to preserve peace until comprehensive security 
organizations can shoulder this burden. 

The expectation that interstate differences will be solved by violent 
methods nevertheless remains pervasive. The tendency in a power 
context is to think in terms of balance, with the chance of effective 
withdrawal by a nonparticipant in conflict, armed or otherwise, 
depending upon the common interest of major powers to prevent 
interferences with or incorporation of the smaller withdrawing 
members of the community. As stated by McDougal and Feliciano : 21 
* * * /T/he probabilities of noninvolvement in a given con- 
flict appear to be a function of, among other factors, the gen- 
eral configuration of the arena and of the maintenance of a 
relative equilibrium of power between the belligerents inter se, 
as well as between the belligerents and nonparticipants. 
The expectation as to effectiveness of a balance of power to safe- 
guard the withdrawer is a pessimistic one. The range of raw ma- 



21 McDougal and Feliciano, Law and Minimum World Public Order, 392 
(1961). The analysis of neutrality here suggested follows substantially the 
outline propounded by these authors. 



329 

terials necessary to sustain a contemporary military effort upon a 
broad scale may induce a participant in military conflict to subject 
a withdrawing state to its direct governmental control. 

The destruction of industry by nuclear weapons may attenuate 
wars to such a degree that participants will have no opportunity to 
press their claims to control raw material sources upon nonpar- 
ticipants. It is equally possible that the trend under such circum- 
stances will be toward "open" or "effectively neutral" states sus- 
tained by the common interest of participants. This common interest 
may be founded either upon the preservation of neutrals as havens or 
places of refuge for civilian populations or upon the use of the 
neutral as a figure in nuclear strategy. These developments are 
conjectural. However, the use of nuclear armaments in warfare 
promises profound shifts in neutrality doctrine. 

Conflict Situations 

Turning from the conditions to which any current naval decision 
made during conflict will be subject and concentrating upon par- 
ticular conflict situations, it is desirable to identify carefully both 
participants and affected nonparticipants in the conflict and to 
appraise their policy processes. The participants should be identified, 
both on a formal and on an effective level. 

In General Situation 7, the United States, Nueva and Antioka 
are participants. Neither the United Nations nor the Organization 
of American States are yet participants in the sense either has 
characterized the action of Nueva or the action of the United States 
as "permissible" or "impermissible." Scythia is a nonparticipant, 
but can shift quickly in either direction. 

In some cases, participants or nonparticipants on an informal 
level will be involved. Merchants, for example, had much influence 
upon British policy as a nonparticipant during the American Civil 
War; and similar influence has been exerted by American merchants 
upon United States policies in our periodic phases of neutrality. 

Participants and nonparticipants are characterized by the com- 
prehensiveness of their organizations and the locations of decision 
makers involved in the particular confrontation within the policy 
structures of their organizations. Concomitant consideration of these 
features is useful in predicting the primacy of objectives which will 
be sought in the contest and the latitude for concession which the 
immediate decision makers will enjoy. 

With an international security organization as a participant, 
such as the United Nations, the primary objective will be reestablish- 
ing order with minimum destruction of values. Decision makers of 
such an organization, concerned with the blockade and the under- 



330 

lying conflict between the United States, Nueva and Scythia, usually 
will have an extensive latitude for concession. 

The bases of power of the participants and nonparticipants should 
be assessed on the basis of: (1) diversity; (2) dispersion; and (3) 
magnitude. Upon what values does a participant base its power? 
The usual territorially based community, excluding minor princi- 
palities, will enjoy a multivalued power base. These values may be 
concentrated or dispersed. Stockpiling practices of the United States, 
pursued intensively after World War II, have placed the United 
States in a secure resource position. This secure position may be 
relied upon defensively to support a claim of neutrality if the United 
States chooses nonparticipation in a conflict between major powers. 
The position may be relied upon offensively when economic warfare 
is used as a primary policy device. It may also be used as a bargain- 
ing element when the United States is a participant, uses economic 
warfare as a secondary policy device, and deals with a nonparticipat- 
ing state possessing a strategic resource. 

The failure by a participant to develop such a resource base for 
the production of values in sufficient diversity and magnitude will 
limit its warmaking potential. The failure also will bear significantly 
upon its relations with nonparticipants which possess an adequate 
resource base. Nazi Germany, for example, failed to stockpile 
strategic materials for a war of the duration which World War II 
proved to be. 22 During the Russian campaign, an invasion of Sweden, 
a nonparticipant, might have been to the military advantage of 
Germany but could not be considered seriously because of the de- 
pendence of Germany upon Swedish iron, steel and precision parts, 
resources which might have been lost in an invasion by application 
of a Swedish "scorched earth" policy. 

Writers have emphasized relative magnitudes of power in deter- 
mining lines of compromise between participants and nonparticipants 
in conflict. 23 The diversity and dispersion of bases of power are also 



22 General Thomas, director of the Rustungs-und Wirtschaftsamt, OKW, 
defined Hitler's instructions for war mobilization as a choice of armament in 
width instead of armament in depth. Apart from the miscalculation of a short 
war, German accumulation of stockpiles of critical materials was hampered by 
a shortage of foreign exchange. 

23 E.g., McDougal and Feliciano, Law and Minimum World Public Order, 388 
(1961) ; Orvik, The Decline of Neutrality 191^-19^1, 13 (1953). Other writers 
place emphasis upon "sanctions" supporting neutrality, describing the institu- 
tional structure by which neutral claims are asserted, and appear to place value 
upon the routine functioning of these institutions as sanctions supporting 
neutral positions. Professor Stone, for example, while apparently considering 
the relative power of participants and nonparticipants highly significant refers 



331 

significant. These, coupled with the determination of the competing 
parties, are of the greatest relevance in establishing their bargaining 
power and the outcome of a neutrality contest as well as the types 
of neutral claims asserted. 

The objectives of participants and nonparticipants can be an- 
ticipated by an appraisal of the comprehensiveness of their organiza- 
tion. In addition their objectives can be characterized in terms of 
exclusiveness or inclusiveness. The objectives of the withdrawer 
(nonparticipant or neutral) tend to be exclusive in the sense that 
the values sought to be protected are not to be widely shared. The 
objectives of the participant tend towards inclusiveness, not for 
philanthropic reasons, but simply because the participant tends to 
seek allies and thus projects its policies as those in which values are 
intended to be shared — at least by the potential allies whose favor 
is courted. 

The objectives of both participants and nonparticipants in a 
situation of intense conflict tend towards exclusiveness when com- 
pared to the objectives of the United States when taking action in 
a low intensity conflict such as that described in General Situation 
7. The objectives of a state taking interim sustaining action to pre- 
serve the peace, pending action by the United Nations or a regional 
security organization, and thus tending to support the general 
security and well-being of states other than those against which the 
action is taken, have dominantly "inclusive" characteristics. The 
inclusiveness or exclusiveness of the objectives sought by participants 
and nonparticipants will bear importantly upon the persuasiveness 
of their arguments to support belligerent and neutral claims to 
rights and obligations. 

While in part a matter to be considered as part of the general 
conditions under which conflict currently occurs, but useful to con- 
sider as an element of a special conflict situation, the orientation 
of the participant or nonparticipant concerning government owner- 
ship or control of trading activities is an important feature in an 
analysis of objectives. The overall volume of trade now handled by 
private entrepreneurs in sea commerce has been drastically reduced. 
States tend towards public ownership of trading facilities. Demo- 
cratic states are asserting extensive administrative controls over 
shipping policy, maritime construction, labor conditions and over 
the volume and character of imports and exports. To the extent that 

to the past strength of neutrality law with its comparatively "even and steady 
pace" of development and the routine administration of justice in prize courts 
as supporting neutrality. See Stone, Legal Controls of International Conflict, 
363-366 (1954). See also, Fox, The Power of Small States (1959), passim. 



332 

a nonparticipant owns its shipping facilities or asserts controls which 
are tantamount to ownership, to this extent the traditional legal 
dichotomy between state and private trading in a neutrality con- 
text is eroded. 

Moving from an orientation in terms of participant and nonpar- 
ticipant characteristics to an analysis of the nature of the conflict 
between participants and the degree of involvement of "nonpar- 
ticipants," three features should be considered: (1) The dimensions 
of the conflict — both institutionally and geographically; (2) Inten- 
sities — including strategies and techniques employed by participants 
and nonparticipants ; and (3) Specific claims to participation and 
nonparticipation asserted. These features are interrelated. The 
tendency, for example, is for a current contest between states evenly 
matched in an intermediate power range to become complex in- 
stitutionally or "vertically." Each state seeks assistance and allies. 
The threat of acceleration of violence is such that international 
security organizations, developed to prevent or confine extensions 
of violence, are involved immediately. The recurrent contests between 
Israel and its Arab neighbors are excellent examples. 

Powerful nonparticipants furnish assistance to their favorites 
in the struggle with their degree of participation conditioned or at 
least complicated by their commitments to the international security 
organizations which also are involved. Claims of neutral rights by 
these nonparticipants, which they can support by force, are never- 
theless curtailed by their obligations to international organizations 
which seek to confine the conflict and resolve it. 

The contest between the United States, Nueva and Antioka, while 
between participants unevenly matched and currently confined 
geographically, is subject to geographical extension by fusion with 
the concomitant contest between Scythia and NATO. Without this 
extension geographically, the contest promises to become complex 
only institutionally — by participation of the United Nations, the 
Organization of American States and perhaps other international 
organizations. 

Conditioned claims of neutrality may be asserted if this institu- 
tional complexity develops with neutrality claims of a "traditional" 
nature asserted if institutional complexity does not develop. If the 
conflict is extended geographically to one of general dimensions, 
an unlikely event if the United States and Scythia are both armed 
with ultradecisive weapons, the institutional (vertical) dimension 
will recede in importance but traditional neutrality claims will be 
curtailed both in assertion and in respect by the overwhelming 
power of the participants. 



333 

The neutrality claim is thus likely to have its maximum effective 
scope when the conflict is limited geographically; but the claim in 
this situation will tend to be conditioned by the institutional com- 
plexity or institutional (vertical) dimensions of the conflict. 

The intensity of the conflict will also have a bearing upon the 
claims asserted by nonparticipants which are recognized by par- 
ticipants. In high intensity conflict, strategies involving the use of 
ultradecisive weapons, such as nuclear, chemical and biological 
weapons systems, as well as ideological and economic warfare, will 
figure prominently. 

Not only will the character of neutrality be greatly modified by 
the socialization of risk in the potentialities of ultradecisive weapons 
and the general effects resulting from their use, but supporting 
ideological and economic warfare will be directed to a major extent 
against nonparticipants with a view to indirect effects upon the 
opposing belligerents. In conflicts of less than maximum intensity, 
such as the conflict in General Situation 7 in which economic warfare 
is being employed to maintain an area status quo to support a mil- 
itary commitment to NATO, claims of nonparticipants are likely 
to be extensive and their recognition by participants probable. 

Claims to Participation and Nonparticipation 

What claims have been asserted to participation and nonparticipa- 
tion in past conflicts and what has been the structure and process of 
decision making with respect to them? What claims to participation 
and nonparticipation are asserted in current General Situation 7 
and what will the structure and process of decision making with 
respect to these likely be? The pattern of claim and counterclaim 
to participation and nonparticipation in past conflicts may be 
described briefly in three categories. 

(1) First are claims to participation or nonparticipation based 
upon self-preservation or self-defense. These claims and the structure 
and process of decision making with respect to them have been 
discussed in Chapter IV, Situation #, in the context of economic war- 
fare as a primary policy device. These claims also have a bearing 
upon belligerency-neutrality contentions in military conflict when 
economic warfare is used as a secondary policy device. The claims, 
however, will probably be asserted by participants and nonpar- 
ticipants with maximum force in conflict in which ultradecisive 
weapons with generalized physical effects are employed ; and in such 
a conflict the maintenance of a community structure for authoritative 
decisions bearing upon such opposed contentions will be difficult. 
The problem thus assumes the shape of one not amenable to the 



334 

influence of legal norms and is not discussed in further detail here. 

(2) Second are claims by an original or nominal nonparticipant 
either to intervene or withdraw from military conflict between 
other states. The claim of intervention is based upon an authorization 
or requirement, the latter imposed by a collective security arrange- 
ment, to maintain the peace. The measures undertaken might range 
from "policing" military measures to various forms of ideological 
or economic assistance to a state characterized by the intervenor 
or a collective security arrangement as the victim of an aggressor. 
The action might be volitional or nonvolitional. An offended bel- 
ligerent will counterclaim that the intervenor, because not a subject 
of attack, has a duty of abstention or impartial treatment. The 
opposed contentions normally will be discussed in the context of the 
commitments of the intervening "nonparticipant" as a member of a 
collective security arrangement. 

The same context will be relevant if the nonparticipant insists 
upon withdrawal from the conflict rather than upon intervention. 
An offended victim of aggression will insist upon the obligations of 
the withdrawer based upon its treaty commitments or upon a char- 
acterization of illegality by organs of the United Nations or a 
regional security organization. 

(3) Third are claims made in a context of "permissible nonpar- 
ticipation" (that is, when participation is not required by a collective 
security arrangement) concerning specific belligerent-neutral (par- 
ticipant-nonparticipant) relationships. The most important group 
of specific claims in this category for the development of a decision 
in General Situation 7 are claims by a belligerent to interdict eco- 
nomic intercourse between a nonparticipant and the opposing bel- 
ligerent. Of less immediate relevance to a consideration of problems 
of economic warfare at sea are participant claims against non- 
participants to abstain from direct military aid to opposing bel- 
ligerents; and claims by nonparticipants against participants to 
abstain from direct military intervention in the territory of the 
nonparticipant. 

Community decisions concerning claims in these three categories 
may be rendered at levels of authority ranging from representatives 
and officials of international organizations functioning during the 
conflict to prize courts and administrative officials at ports of 
diversion of the belligerents. 24 Decisions may also be rendered by 



24 A convenient description of prize courts and their jurisdiction may be 
found in Colombos, The Law of Prize (2d Ed., 1940). To administrative officials 
at ports to which vessels might be diverted, can be added the host of navicert- 
ing officials and economic warfare officials functioning during modern military 



335 

international courts and claims commissions when the conflict has 
terminated. 25 

The objectives of international organizations as participants in 
conflict have been considered heretofore in this analysis. National 
prize courts and administrative officials of a belligerent predictably 
will share the objectives of the belligerent. Prize courts, however, 
tend to build up a body of prize doctrine conforming quite closely 
to norms established by world community decisions. While bellig- 
erents can and have changed their national prize law by legislation to 
accomplish wartime objectives, these changes are made infrequently 
and tend to encounter judicial resistance. 

With respect to the two general categories of claims principally 
relevant to economic warfare at sea: (1) The claim by an original 
nonparticipant either to intervene in conflict to preserve order or 
withdraw from it; and (2) Claims in a context of "permissible 
nonparticipation" concerning specific participant-nonparticipant 
(belligerent-neutral) relationships; basic policies of community 
decision makers have been established by agreement — by multi- 
lateral conventions. 

Policies concerning claims of the first category currently are 
expressed in the United Nations Charter and constitutive and other 
instruments of regional security organizations or arrangements 
established under Charter provisions. These agreements express 
generally the revived policy of minimum order. 

Agreements concerning claims in the second category, such as 
the Declaration of Paris, 1856, the London Declaration, 1909 (un- 
ratified) , relevant Hague Conventions of 1907 and the Pan American 
Neutrality Convention of 1928, heretofore described, basically are 
codifications of custom developed over several centuries. These older 
conventions do express a policy for minimum value destruction. Such 
values include the well-being and respect of the individaul as well 
as his wealth. 

The policy of minimum value destruction remains viable. But 
detailed prescriptions in the older conventions must be reconciled in 
community decisions with the minimum order policy expressed in the 
later United Nations Charter and related agreements. 

contests, all of which can be expected to reflect belligerent demands and seek 
belligerent objectives if these are maintained in spite of conflicting community 
decisions. 

25 The postconflict claims decisions, by and large, tend to involve rough and 
ready compromises in which the principles of decision remain obscure. To a 
degree the Alabama Arbitration shared this defect, although the Commission 
induced the parties to agree to the Treaty of Washington establishing three 
rules for determination of the various cases. A full account of the Alabama 
proceedings may be found in I Moore, History and Digest of the Arbitrations 
to which the United States has been a Party, 496-665 (1898). 



336 

The community methods for characterizing particular resorts to 
coercion as permissible or impermissible in the light of these princi- 
ples, and the community methods for identifying a transgressor, 
have tended, during the twentieth century, to become centralized in 
formal decision-making structures. The formal pattern of state 
commitments to support of these decisions has become more com- 
prehensive. But commitment practices have been eroded effectively 
by systemic conflict since the end of World War II and the pattern 
of withdrawals from this conflict previously described. 

The Covenant of the League was the first significant formal 
departure from the traditional international legal position that a 
state had a sovereign right to resort to war. It was thus also the 
first significant assault upon the traditional doctrine of neutrality. 

The Covenant, conservatively, stated four cases in which resorts 
to war were impermissible. 26 These prohibitions were not, however, 
supported by a decision-making structure which definitely could: 
(1) characterize a breach; (2) label a wrongdoer; or (3) direct con- 
sequent action by members. 

The authority of the League Council was limited to recommenda- 
tions to its members; and an undertaking in the Covenant for eco- 
nomic action and severance of communications with a transgressor 27 
was construed to be operative only if the member whose response 
was solicited determined that the transgressor had breached the 
Covenant. In a practical sense, this left the imposition of economic 
sanctions to the volition of individual members, many of whom 
failed to act in patently appropriate cases. By the outbreak of 
World War II most of the League members viewed economic sanc- 
tions as nonobligatory. 

In this decentralized system for developing the relevant decisions, 



38 The four prohibited cases were: (1) No resort to war without submission 
of dispute to arbitration, judicial settlement of inquiry by council (Art. 12) ; 
(2) No resort to war within three months after award, decision or report by 
arbitral tribunal, court or council (Art. 12) ; No resort to war against member 
complying with award, decision or report (Art. 13(4), Art. 15(6) — if report of 
council unanimously agreed to by other than parties to dispute) ; (4) Non- 
member cannot resort to war against member without meeting certain condi- 
tions of inquiry by council (Art. 17). 

27 Art. 16(1) : "Should any Member of the League resort to war in disregard 
of its covenants under Articles 12, 13 or 15, it shall ipso facto be deemed to 
have committed an act of war against all other Members of the League, which 
hereby undertake immediately to subject it to the severance of all trade or 
financial relations, the prohibition of all intercourse between their nationals and 
the nationals of the covenant breaking State, and the prevention of all financial, 
commercial or personal intercourse between the nationals of the covenant- 
breaking State and the nationals of any other State, whether a Member of the 
League or not." 



337 

nonparticipations were endemic ; 28 and, in the festering chaos which 
immediately preceded World War II, claims to avoid participation 
in the impending debacle were "asserted with a vigor begotten of 
desperation." 29 This hopeless flight from an engulfing conflict was 
not stemmed by the Pact of Paris of 1928 (Kellogg-Briand Pact) 
in which war was renounced by the signatories as an instrument of 
national policy. 

The Kellogg-Briand Pact did provide a basis for permissive 
participation by a signatory in maintaining order, whether a Mem- 
ber of the League or not. It also provided a ground for discrimina- 
tion by a military nonparticipant against a violator of the Pact in 
a manner which would conflict with the traditional neutral duties 
as formulated in custom and as embraced in earlier conventions. The 
early World War II exchange of destroyers for bases by the United 
States and the Lend-Lease Act of 1941, both before the formal entry 
of the United States into the War, could be reconciled with the 
neutral "obligations" of the United States by a "right" to dis- 
criminate against Nazi Germany as a violator of the Kellogg-Briand 
Pact. 

In the United Nations system for collective security, the weak- 
nesses of the League were partially repaired by centralizing in the 
Organization power to characterize as impermissible exercises of 
coercion in a broader spectrum than the limited "resorts to war" 
mentioned in the Covenant. The Security Council could identify the 
transgressor. In addition to recommending action to settle a dispute, 
or to maintain or restore international peace or security, the Council 
could decide what measures not involving the use of armed force 
should be employed and call upon the members to apply them. 30 It 
could also act by the use of armed force. 31 



28 Declarations of neutrality were made by nonparticipants in the Turkish- 
Greek War of 1921 and in The Chaco War. Upon the outbreak of hostilities in 
1939 there were numerous declarations. Furthermore, the Pan American Neu- 
trality Convention of 1928 was ratified by some League Members and the Nine 
Power Treaty of 1922, signed by nine League Members, contained provisions 
respecting the neutrality of China in time of war to which she was not a party. 
There were also a number of bilateral treaties concerning neutrality. 

29 McDougal and Feliciano, Law and Minimum World Public Order, 423 
(1961). 

30 Article 41 : "The Security Council may decide that measures not involving 
the use of armed force are to be employed to give effect to its decisions, and 
it may call upon the Members of the United Nations to apply such measures. 
These may include complete or partial interruption of economic relations and 
of rail, sea, air, postal, telegraphic, radio, and other means of communication, 
and the severance of diplomatic relations." 

31 Article 42: "Should the Security Council consider that measures provided 
for in Article 41 would be inadequate or have proved to be inadequate, it may 
tions, blockade, and other operations by air, sea or land forces of Members of 



338 

By Article 25 the members agreed to accept and carry out the 
decisions of the Security Council in accordance with the Charter; 
and in Article 2(5) to give the United Nations every assistance in 
any action it takes in accordance with the Charter and refrain from 
giving assistance to any state against which the United Nations is 
taking preventive or enforcement action. 

A significant gap in the pattern of commitments to support 
Council action was the keying in Article 43 of the obligation to 
furnish armed forces, assistance and facilities to special agreements 
between the Security Council and members or groups of members. 
These agreements have not been made and the provision of the 
forces contemplated in Article 42 hinge upon the recommendation 
of the Security Council and the goodwill of the members. 

There was, however, a block to any Security Council action, 
whether recommendatory or not, in the veto. While the issues might 
then be discussed by the General Assembly or its Interim Committee 
under the Uniting for Peace Resolution, a decision rendered would 
be recommendatory and impose no obligation to act upon the Mem- 
bers. However, consideration of the issues by the General Assembly 
would permit characterizing the coercion as "permissible" or "im- 
permissible" with identification of any transgressor. 

Although the level of commitment as a result of the veto was only 
slightly higher than under the League, the traditional neutrality 
pattern was substantially changed by other features. These were 
centralization of the characterization process; an obligation under 
Article 2(5) to abstain from aid to any state against which the 
United Nations was taking preventive or enforcement action; and 
commitment under regional security arrangements or agencies con- 
templated under Article 52. 

In the Rio Pact (Inter- American Treaty of Reciprocal Assistance) 
of 1947, the Organ of Consultation can agree upon and direct 
ruptures of diplomatic relations and interruptions of economic 
relations, transit and communications with a transgressor. It can 
only recommend uses of armed force. 32 The Organ of Consultation 
takes its decisions by a vote of two thirds of the member states. 33 

Under the United Nations aegis, if coercion is characterized as 
"impermissible" by the Security Council or the General Assembly, 
and a transgressor is identified, the maximum degree of "permissible 

restore international peace and security. Such action may include demonstra- 
tions, blockade, and other operations by air, sea or land forces of Members of 
the United Nations." 

32 62 Stat. 1699 (1947) Arts. 8, 20. 

33 IMd., Art. 17. 



339 

nonparticipation" is enjoyed only by nonmembers. A nonmember 
might nevertheless be committed to participate pursuant to a regional 
security arrangement. 

Members of the United Nations are bound to no participation 
simply upon recommendation of the Security Council or General 
Assembly. "Permissible" participation is possible. If action is 
directed by the Security Council, for example under Article 41, 
members are committed to comply. 

When coercion is not characterized as impermissible by appro- 
priate organs of the United Nations or regional security arrange- 
ments, community decisions^ concerning specific participant-non- 
participant relationships will be formulated in the traditional man- 
ner. The degree of "permissible" participation under these circum- 
stances is limited. A "nonparticipant" may accord differential treat- 
ment to participants based upon conventions such as the Kellogg- 
Briand Pact. Self-defense or interim sustaining action are viable 
bases for limited participation. 34 

McDougal and Feliciano recommend states under these circum- 
stances should characterize "impermissible" coercions and discrim- 
inate among participants in appropriate gradations by decisions of 
a provisional nature. 35 If goals are shared by the characterizing 
states, diverging characterizations with resulting chaos might be 
avoided. There is a common interest in preserving minimum order 
which might militate against these divergences. 

In General Situation 7, no characterizations of the coercive ex- 
changes have been made by community institutions. This may soon 
occur. May Scythia, under these circumstances, characterize the 
conflict and discriminate against the United States? 

Nonparticipation seems the proper course unless a different posture 
can be taken by treaty or on defensive grounds. 36 Although the 
United States has not declared war against Nueva and Antioka, 
blockade is a belligerent act: in this case responding coercion — 
defensive in nature. Correspondingly the United States must treat 
Scythia as a nonparticipant or as a "neutral" until its policy of 
participation or nonparticipation is expressed. 

It is unlikely, however, that Scythian withdrawal from this con- 
flict will be complete until the coercive exchanges are characterized. 



34 See Chapter I V ( B ) ( Situation 6 ) . 

35 McDougal and Feliciano, Law and Minimum World Public Order, 414-418 
(1961). 

36 Judge Jessup and Dr. Bowett, for example, recommend nonparticipation 
absent a community characterization of the coercion. Jessup, A Modern Law of 
Nations, 205 (1948) ; Bowett, Self -Defense in International Law, 180 (1958). 



340 

The most apt description of its position in such a case, assuming no 
military involvement, is that of "military nonparticipant." 

The Security Council or the General Assembly (or its Interim 
Committee) may or may not characterize the initiating coercion by 
Nueva and the responding coercion by the United States as "per- 
missible" or "impermissible." Whether or not a characterization 
will occur can usually be ascertained within about forty-eight hours 
after the appropriate organ is notified. 

If no characterization occurs, the Security Council or the General 
Assembly will probably attempt peaceful settlement of the dispute. 
Members of the United Nations are committed to support these 
efforts towards a peaceful solution. 

During the initial forty-eight hours, or longer or shorter time 
period, while the policy of the appropriate organ is in doubt, the 
actions of members may range from active military intervention, 
perhaps on a theory of self-defense or "interim sustaining action" 
to preserve the peace, to military nonparticipation with economic 
contact only with participants, to substantially complete with- 
drawal both in a military and economic sense. 

Discrimination against participants may be anticipated until 
community policy is clarified. When community policy is clarified, 
discrimination may be anticipated against the identified trans- 
gressor. In the unlikely event the community policy is one of detach- 
ment and noninvolvement, pressures by participants will tend to 
reinforce the traditional neutrality norms of nondiscrimination by 
nonparticipants. 

B. NAVAL BLOCKADE 

Special Situation 7 A 

You are Captain of U.S.S. Buchanan, a destroyer, now on block- 
ade. You have received a copy of the Declaration of Blockade stated 
in General Situation 7 with supplementary operational instructions. 
You have reviewed the Instructions to United States Naval Forces 
Employed in Blockade Operations. 

A Scythian merchantman, Electra, is approaching your position. 
The vessel is not proceeding on the course on the chart attached 
to the Declaration of Blockade. You have radio contact with the 
master of Electra. He states he is bound for Rivadavia, Nueva; 
that his cargo is none of your business ; that he knows of no blockade ; 
that Electra is a public vessel of Scythia, and an attempt by you 
to seize her will be an act of war. 



341 

Anticipating difficulty with the master when you halt Electra 
for a visit and search or diversion, you are reviewing the principles 
of naval blockade before you issue final instructions to your board- 
ing officer. What are the principles of naval blockade and how will 
these principles bear upon your handling of Electra and her master? 

Discussion : Special Situation 7 A 

The blockade declared by Admiral Brown will be conducted as a 
blockade in depth. The blockade may be described today as a "Naval 
Blockade" — but should not be understood as a "close" blockade of the 
19th-century type. 

The Federal blockade of the port of Wilmington, North Carolina, 
is a good example of a 19th-century "close" blockade. The entrance 
to the Cape Fear River, the sea approach to Wilmington, is divided 
by Smith's Island into two channels — Smith's Inlet and New Inlet. 

Because of poor communications and the distance between the 
channels, the inner Federal blockading force was divided into two 
squadrons — one squadron being stationed at each entrance. Each 
squadron operated independently. 

During daylight the ships were at anchor at close intervals. The 
squadron at New Inlet was anchored just beyond the range of the 
Confederate guns at Fort Fisher. During darkness, the blockaders 
raised anchor and patrolled, using pyrotechnics to maintain contact 
with the anchored flagship. 

Beyond the inner force was a second division of cruisers. These 
usually were under way. Beyond these was a third cordon of 
blockaders stationed at a variable distance. This distance was esti- 
mated by the travel time of a blockade runner crossing the Wilming- 
ton bar at high water at night. In theory, the blockade runner, if 
sufficiently fortunate to escape the first two forces during egress 
at night, was supposed to be snapped up by the third cordon at 
daybreak. 

While this scheme appeared better designed to capture cotton 
leaving Wilmington than guns and ammunition going in, it seems 
at first glance sufficiently tight to deter the most ambitious block- 
ade runner. 

However, more tonnage entered and departed the Cape Fear River 
during the war years preceding the fall of Fort Fisher than in 
double the equivalent time before or since. So refined had techniques 
become for running "close" blockades that a British naval maxim 
declared the best blockader an ex-blockade runner. Hobart Pasha, 



342 

a British naval officer on half pay, who ran the Wilmington blockade 
with regularity, conducted a highly effective blockade for the 
Sultan of Turkey against the Greeks after the Civil War. 

Blockade runners of shallow draft had an advantage of freedom 
of maneuver against a "close" blockade. Slipping in to a point on 
the coast, north or south of Wilmington, the runner could skirt the 
breakers until she reached the protection of the Confederate coast 
artillery. These guns, upon signal, kept the blockaders at bay until 
the runner could work her way into the Cape Fear River. 

During egress at night, the runner departed before high water, 
avoided the inner force by passing so close to the flagship that 
patrols could not fire effectively even if the runner was discovered, 
and by daylight was beyond the third division on her way to 
Bermuda or Nassau. 

Experiencing similar frustration at most of the major blockaded 
ports, the Federals came to rely to a great extent upon supplement- 
ary long-distance interceptions. These were founded upon the 
doctrine of contraband and upon the doctrine of continuous voyage. 

The effectiveness of these more distant operations was demonstrated 
by the significant constriction of Confederate commerce evident 
from 1863 until the end of the war. In 1863, operations of this 
extended type were the minimum factually effective blockading 
efforts. The "close" blockades practiced at Wilmington and other 
Confederate ports, regarded as "effective" legally by many inter- 
national lawyers, were of doubtful efficiency in snaring blockade 
runners powered by steam. 

"Close" blockades of the 19th-century type were designed to 
interdict sailing vessels — and sailing vessels often fell prey to the 
blockaders of Confederate ports. Such a "close" blockade might be 
useful again in areas in which sailing vessels or vessels of low 
power are used extensively in trade. 37 Had the Federal blockaders 
at Wilmington been provided with efficient searchlights, other than 
the crude calcium lights used experimentally at the time, the number 
of successful runnings of the blockade by fast steam vessels would 
have been much reduced. 38 The use of radio and radar, had these 
devices been available, would have made the Wilmington blockade 
"ship tight." 

Developments in long-range coast artillery; ballistic and guided 



37 See Cagle and Manson, The Sea War in Korea, 337-343 (1957) where the 
use of armed whaleboats vectored through mined areas during darkness to cut 
out small enemy craft is described. 

38 See Schley, Forty-Five Years Under the Flag, 247-250 (1904) for the "prac- 
tice" blockade off Charleston in 1897 using modern searchlights. 



343 

missiles; efficient mines and mining techniques; carrier and shore- 
based aircraft ; and submarines ; are often cited as precluding "close" 
blockades. This depends, of course, upon availability of these weapons 
to the adversary's forces in the blockaded area; and, if the weapons 
are available, whether they have the skill and inclination to use 
them. 

The Spanish coast defense artillery at Santiago in 1898 was com- 
parable to the coast artillery used extensively in the United States 
until World War II. But the Spanish gunners were no marksmen; 
and United States naval units maintained a closer blockade of 
Santiago in 1898 than of any of the Confederate ports during the 
American Civil War. 39 

During World War I, eleven blockades were maintained by naval 
action alone. A Soviet blockade of Finland was apparently main- 
tained primarily by naval action although it is not clear this block- 
ade was maintained effectively. 40 The blockade of the East and West 
coasts of North Korea had analogies to older "close" blockades, 41 
as have arms control and counterinsurgency measures taken in 
waters adjacent to South and North Vietnam. 

Many of the devices thought to preclude "close" blockades are 
themselves aids in maintaining an effective blockade. This certainly 
is true of mines, submarines and aircraft. Developments in com- 
munications and electronic scanning devices probably contribute 
more to effective techniques for maintaining blockades than to 
techniques for breaking them. 

There are no doubt ports in weak states which can be blockaded 
efficiently today by vessels anchored at the entrance in the 19th- 
century tradition. It is equally certain this is seldom a prudent use 
of naval resources. Administrative trade controls, such as those 
available to the United States on a current or standby basis, can be 
used to interdict most commerce to these points. Naval action simply 
accomplishes the task more rapidly. 

On the other hand, comprehensive trade control structures such 
as those familiar in World Wars I and II are emergency develop- 
ments. With the exception of vestigal remnants, such as the familiar 
export controls in the United States today, these comprehensive 
structures tend to be abandoned when hostilities cease. For trade 



39 Ibid., 288-289. 

^Castren, The Present Law of War and Neutrality, 292 (1954). This 
blockade was imposed in the so-called "Winter War." It was not reimposed 
after the German attack on the Soviet Union. 

41 Brodie, Guide to Naval Strategy, 236, 244 ; Cagle and Manson, The Sea War 
in Korea, 337-343 (1957) ; Field, History of United States Naval Operations: 
Korea, 58-9, 319-21, 366-7 (1962). 



344 

interruption beyond the capability of limited "peacetime'' admin- 
istrative trade control structures, or when speed is necessary, there 
is no substitute for naval blockade. 

A modern blockade will apply the weight of the blockading force 
at a great distance from the area blockaded. Although not a block- 
ade, the Cuban Quarantine of 1962 illustrates the broad zone of 
operations required against a convoluted and indented shoreline 
open to many approaches from the sea. 

The less blockade running, the closer operations may be to the 
blockaded area. In the blockade of North Korea, the blockading 
force was employed principally for coastal bombardment and for 
destruction of small coasting vessels. Although Red China and the 
Soviet Union protested the blockade, published reports indicate no 
major efforts to run it. Land transit routes, determined by the mili- 
tary situation of the North Korean Army, seemed preferred by 
Red China and the Soviets. 

Although the weight of the blockading force may be applied at a 
distance, small naval units probably will operate in the immediate 
vicinity of the ports or shoreline. Aircraft and hovercraft are 
desirable for this purpose. Small conventional surface units might 
also be used. Aircraft, particularly helicopters, and submarines will 
be used for reconnaissance, for visits to vessels approaching the 
blockade, and perhaps for seizures of blockade runners. 

A blockade in depth may be used as in General Situation 7 to 
isolate an area until the intentions of a more formidable adversary 
can be determined. Such a blockade also might be imposed quickly 
and as quickly lifted in the execution of economic sorties. 

The role of such blockades will be limited in general wars. There 
will be other demands upon naval forces. NAVAD blockades will be 
characteristic of these general wars, with naval blockades, such as 
that described, reserved to accomplish limited and specific objects. 

Major Legal Features of Naval Blockade 

The major legal features of naval blockade have remained almost 
static since the Declaration of Paris, 1856. However, there have been 
changes in blockading techniques and international organizations 
may now be blockaders. 

The Security Council may declare a blockade under Article 42 
of the Charter. Blockades may be recommended by the General 
Assembly or appropriate policy organs of several regional security 
organizations including the Organ of Consultation of the Organiza- 
tion of American States. 

When international organizations participate in a blockade, the 



345 

legal requirements for blockade may change. The general community 
is likely to recognize fewer "nonparticipation" or "neutrality" con- 
tentions by member states previously committed to support policies 
of the blockading organizations. 

Blockade Must be Declared and Established 
by Competent Authority 

To be binding legally upon nonparticipants, a blockade must be 
declared and established by competent authority. The criteria used 
to determine "competence" of the authority have received scant 
attention by publicists. 

Infrequently, "competence" is determined by prior agreement 
among states possibly to be affected by a blockade. The salient current 
example is the competence to blockade conferred upon the Security 
Council by Article 42 of the United Nations Charter. 

Absent a treaty, the criteria usually invoked are the ability and 
apparent intention of the blockading authority to discharge its 
international legal responsibilities. Relevant to these findings of 
ability and intention are adequate instructions to the blockading 
force and control by the authority over activities of the force. Judi- 
cial processes to pass upon the claims of nonparticipants, such as 
prize court procedures, must also be provided by the blockading 
authority. 

Invocation of the criteria described has tended to confine com- 
petence to blockade to recognized governments of recognized states. 
Competence to blockade has been denied insurgents, although state 
determinations in these cases have been influenced by the stability, 
size and success of the insurgent group. 42 



42 The first naval blockade was imposed in 1584 by Dutch insurgents against 
ports of Flanders in the hands of Spain. Under the Nyon Agreement of 1937, 
major European powers refused to concede belligerent rights to the de jure 
government of Spain or to the insurgents. The British, for example, refused to 
recognize a naval blockade proclaimed by the Spanish insurgents. 

Professor Hyde states : "It is improbable that the United States would at 
the present time be disposed to pay deference to a blockade instituted by un- 
recognized insurgents, although it might under some conditions respect their 
effort, if effectual, to close ports under their actual control by measures that 
were not sought to be enforced on the high seas." Ill Hyde, International Law, 
2186 (2d Ed., 1947). 

State Department papers of the late 19th and early 20th centuries reveal 
respect for insurgent blockades, although some of these "blockades" may have 
been regarded as "port closures" by action within territorial waters. See Foreign 
Relations of the United States, 1893, 98-99. Foreign Relations of the United 
States, 1909, 454-455. Foreign Relations of the United States, 1910, 756-757. 

See Naval War College, International Law Situations, 1901, 110-137. (Discus- 



346 

When insurgents are denied competence to blockade, they may 
act within the territorial waters of the state within which the in- 
surgency occurs to deny delivery of property of a military nature 
to the opposing government. Recognition of this claim to deny 
military goods to the opposing government, does not include recogni- 
tion of an insurgent right to seize a ship of a nonparticipant for 
breach of blockade. It is probable requisitions of ships and cargoes 
within territorial waters will have the same limited legal effect of 
requisitions of goods on land. 

A feature of increasing importance in characterizations of com- 
petence to blockade is compatibility of the intensity of coercion by 
the blockading authority with commitments made by the authority 
under the United Nations Charter. A spectrum in degrees of coercive 
acts will be involved in a particular blockade; and overall intensities 
of coercion among different blockades may vary. Typically, coercive 
intensities in blockades have been so high that publicists have de- 
scribed blockades in the past as belligerent acts. The stage is set for 
declarations of neutrality by nonparticipants. 43 

With the sovereign right to resort to war eliminated in the United 
Nations Charter, blockades will come under close scrutiny as pos- 
sibly illegal applications of coercion. However, the sophisticated 
abandonment of a war-peace dichotomy in legal thinking may lead 
to exact discriminations concerning the reasons for blockade and the 
degree of coercion actually involved. Automatic characterizations of 
blockades as "acts of war" may be avoided. 

A naval commander acting for a competent authority may declare 
a blockade. 44 A blockade is not established by United States naval 
forces unless directed by the President. 



sion of proposed blockade by Chilean insurgents in 1891, said to have been a 
right conceded by the British on the usual condition of effectiveness, and Bra- 
zilian blockade of 1893-94) ; Naval War College, International Law Situations, 
1902, 57-83. (Collection of statements of publicists relevant to competence to 
declare a blockade with George Grafton Wilson and Hay letters concerning 
blockades by insurgents — Hay's position being "Insurgents not yet recognized 
as possessing the attributes of full belligerency cannot establish a blockade 
according to the definition of International Law.") VII Moore, Digest of Inter- 
national Law, 785-788 (1906) ; VII Hackworth, Digest of International Law, 
169-173 (1943) ; II United States Foreign Relations, 432 (1924) (U.S. opposi- 
tion to proposed Huerta blockade of Tampico). For a discussion of United 
States policy concerning the "blockaded by the Spanish insurgents, see Naval 
War College, International Law Situations, 1938, 95-98. 

43 A blockade does not spring into existence upon a declaration of war. It 
must be declared and notified by the blockading power. 

44 See Colombos, International Law of the Sea, 585 (3d Ed., 1954). 



347 

Character of the Declaration : 
Notification to Nonparticipants 

Breach of blockade or attempted breach is treated as an offense 
against the law of the blockading state. Vessels of nonparticipants 
are subject to seizure. The vessel and its cargo may then be con- 
demned in prize proceedings. 

Because of the property loss facing owners of vessels and cargoes 
through seizures, detentions and possible condemnations for breach 
or attempted breaches of blockade, a rudimentary form of pro- 
cedural due process must be followed by the blockader. There seems 
general agreement that a vessel of a nonparticipant should not be 
seized until it has actual or constructive notice of the blockade or 
unless notice is actually given by the blockading force before the 
alleged breach or attempted breach. There has been diversity in 
practice as to the method and time of delivery of the notice. 

The Declaration of London, 1909, is a guide to declaration and 
notice requirements upon which delegates of major naval powers 
could agree in the early 20th century. By Article 8, a Declaration 
of Blockade and notice of the declaration were required for the 
blockade "to be binding." Subsequent articles of the Declaration 
make it clear that "binding" means a vessel of a nonparticipant 
should not be seized without actual or constructive notification. The 
Declaration of Blockade is required by Article 9 to state the date 
the blockade begins, geographical limits of the coast blockaded and 
the delay allowed neutral vessels for departure. 

Current practice requires the time as well as the date of the block- 
ade be stated. If the blockade is to extend to air traffic, this should be 
stated in the Declaration of Blockade as part of the requirement of 
geographic limits. Action contemplated by the blockading power 
with respect to submarine traffic should be declared. 

Delegates to the 1908 London Conference understood a reasonable 
time should be granted for departure of neutral vessels. 45 Times 
usually have been established for departures by neutral vessels, 
ranging from 2 to 30 or more days. 46 A failure to state a time for 



45 See Naval War College, International Law Topics, 1909, 37. 

46 The United States Blockade Proclamations applying to Northern Cuba, to 
Southern Cuba and San Juan, Puerto Rico, allowed 30 days for departure of 
neutral vessels. Foreign Relations of the United States, 1898, 769 (Northern 
Cuba), 773 (Southern Cuba and San Juan). 

This time exceeds that likely to be allowed today. Colombos, commenting 
upon Hall's statement that 15 days is the time usually allowed, declares this 
excessive under modern conditions. Colombos, International Law of the Sea, 
585 (3d Ed., 1954), Fn. 3. Professor Hyde doubts any minimum number of days 
of grace are required. Ill Hyde, International Law, 2216 (1947). 



348 

departure in the Declaration of Blockade does not, as Article 9 
suggests, preclude seizure of a neutral vessel for breach or attempted 
breach of blockade. However, neutral vessels which depart promptly 
after notification should be permitted to pass. 47 

This limited privilege accorded neutral vessels extends only to 
neutral vessels entitled to fly a neutral flag at the time of notification. 
A vessel transferred from enemy ownership after notification can be 
seized. The privilege of withdrawal does not extend to cargo. How- 
ever, blockading powers have frequently permitted cargo sent in on 
the neutral vessel before notice of the declaration, retained in neutral 
ownership and then withdrawn in good faith, to pass the blockade. 
These withdrawals of neutral cargo present special problems which 
may require diversion of the departing vessel for search. In most 
instances under current conditions of sea warfare it is in the interest 
of both blockader and nonparticipant for the vessel to depart in 
ballast. 

The Declaration of Blockade must be notified by the terms of 
Article 11 of the London Declaration to governments of neutral 
powers or to their "representatives accredited to it" and also to local 



47 Hague Convention No. 6 of 1907 stated it was desirable to allow the vessel 
of a belligerent in an enemy port to depart immediately or after a period of 
grace (Article 1). The British representative at the Hague Conference stated 
his government did not regard as obligatory the granting of any period of grace 
to an enemy vessel. See Hall, The Law of Naval Warfare, 29 (1921). Neutral 
merchantmen, by contrast, are entitled by custom to leave a blockaded area 
without seizure if they depart within a reasonable time. 

No period of grace is required to be stated in the Declaration of Blockade 
or notices of it. Colombos, International Law of the Sea, 586 (3d Ed., 1954). 
Writers appearing to take the position that a period of grace must be granted 
expressly, probably simply restate the provisions in Article 9 of the Declaration 
of London of 1909. E.g., Smith, The Law and Custom of the Sea, 139 (3d Ed., 
1959). 

Article 16 of the Declaration of London, when read with Article 9, suggests 
the blockade is effective legally although the period of grace has not been 
stated. As a penalty upon the blockading force, neutral vessels in port at the 
time of the notification must be allowed to pass free. See Naval War College, 
International Law Topics, 1909, 47-49. 

Lord Stowell, dealing with a notice delivered during the blockade of Monte- 
video, but failing to state neutral vessels could bring out cargo loaded before 
notification, declared in The Rolla /1807/ 6 C. Rob. 365, 371 : "But the blockade 
is good, pro tanto; and the court will not vitiate the effect of it, merely on 
account of the omission of one of the conditions under which vessels might be 
permitted to go out. * * * Here it was a restriction imposed by the commander 
himself / * * * distinguishing the case from one in which the area of blockade 
was stated defectively * * * / who might possibly find himself under circum- 
stances that would make such a restrain perfectly justifiable, though no such 
circumstances are stated. * * * " 



349 

authorities in the blockaded area. The local authorities are to inform 
foreign consuls in the blockaded area as soon as possible. 

The doctrine of constructive notice, derived from the British, 
United States and Japanese practice, is adopted in part in Articles 
14, 15 and 16 of the London Declaration. 

The vessel of a nonparticipant or neutral within the blockaded 
area is presumed to know of the blockade when notice has been given 
by the commander of the blockading force to appropriate local 
authorities. This presumption is absolute (or irrebuttable) . 

If the vessel departs a neutral port after notification made in 
sufficient time to the state to which the port belongs, Article 15 of 
the London Declaration raises a rebuttable presumption of knowledge 
of the vessel. If, on the other hand, the vessel of a nonparticipant 
approaches the blockaded area in ingress, and does not know or 
cannot be presumed to know of the blockade, special notice to the 
vessel is required by Article 16. This special notice must be given 
by an officer of one of the ships of the blockading force. The notice 
is entered in the vessel's logbook, with entry of the day, hour and 
geographical position of the vessel. 

Contemporary writers agree that no special form of notice is 
required. The special notice stipulated in Article 16 of the Declara- 
tion of London is conveyed as effectively by a visual signal, or by 
direct voice or radio contact as by boarding the vessel. 48 

If boarding is feasible with reasonable safety to the blockading 
vessel, it is desirable to enter the relevant facts of notice in the log- 
book of the vessel or upon the papers establishing the nationality 
of a diverted aircraft. A printed copy of the Declaration of Blockade 
should be delivered to the officer in charge of the intercepted unit. 

When the blockade is common knowledge in the port of departure, 
this knowledge is imputed to a departing vessel even though notice 
has not been given to the government of the port. 49 A neutral vessel 
in egress from a blockaded port may also observe sufficient signs of 
naval and air activity to put her on notice that a blockade has been 



48 "The Law of War and Neutrality at Sea," Naval War College, Interna- 
tional Law Studies, 1955, 288. 

49 In The Tutela /1805/ 6 C. Rob. 177, the vessel sailed from Bordeaux with 
a cargo of wheat owned by the Spanish government. The vessel was seized by 
the British fleet blockading St. Lucar. 

There had been no formal notification of this blockade to French authorities 
but the existence of the blockade was common knowledge in Bordeaux. The 
master heard of the blockade before he sailed from Bordeaux and remonstrated 
with the shipper. He had been obliged to proceed as he had signed the charter 
party before notice of the blockade. Lord Stowell condemned the cargo and 
vessel. 



350 

established. 50 Any presumption of knowledge of the blockade under 
these circumstances should rest lightly when the blockade is in depth. 

Many of the vessels approaching a blockaded area will have been 
warned by radio that a blockade is established. Publicists have 
emphasized the improved intelligence net as a reason for deviation 
from formal notice provisions, such as those in Article 11 of the 
Declaration of London. 51 

Under special circumstances, a blockade may be so notorious that 
within a reasonable time after the blockade is announced notice 
may be imputed to all vessels and aircraft. An example is a blockade 
declared or recommended by the Security Council of the United 
Nations. 

But when a naval blockade is established, such as the blockade 
established in General Situation 7, special notices to all vessels and 
aircraft approaching the blockaded area are advantageous both to 
the blockader and to the nonparticipant. The blockade is intended to 
deny supplies to an adversary and to prevent his export of materials. 
This denial must be accomplished with economy of force and with 
minimum disruption of public order. 

It is in the interest of the blockader to hold diversions of vessels 
or their seizure to a minimum. Notice carefully delivered to vessels 
and aircraft of nonparticipants may cause voluntary withdrawals of 
units unprepared to test the effectiveness of the blockade. 

The element of administrative convenience inherent in special 
notices is demonstrated in the confrontation of Electra by Buchanan 
in Special Situation 7 A. The blockade has been established rapidly 
as a device to preserve the military status quo pending action by the 
United Nations or the Organization of American States. 



50 The de facto blockade, distinguished in British, American and Japanese 
practice from a notified blockade, is based upon patent naval activity which 
the master of a vessel in ingress or egress should be able to observe. Neutral 
vessels, leaving a blockaded port after the blockade has existed de facto, are 
subject to seizure without special notice. The Vrouw Judith /1799/ 1 C. Rob. 
150; The Hare /1810/ 1 Acton 252 (blockade established by notification, driven 
off and reestablished without notification). 

For a neutral vessel in egress, readily observable naval activity has been 
given weight when also coupled with other sources of knowledge by the master. 
E.g., The Herald, 70 U.S. (3 Wall.), 768 (1865). 

A vessel in ingress through the blockaded area when the blockade is de facto 
is entitled to special notice before seizure if knowledge of the blockade is 
lacking. This knowledge may be gained from general notoriety in the port of 
departure but will not be imputed when there is confusion in the port of de- 
parture concerning the area blockaded. The Franciska /1855/ 10 Moore P.C. 
37 (where it was also held a blockade of Riga was not applied impartially). 

51 E.g., Ill Hyde, International Law, 2206-2209 (1947). 



351 

While Electrons master may have received notice of the blockade 
by radio, there is a chance he has not received this notice and will 
change his course if notice is given. The most effective notice of the 
blockade can be given by visiting Electra, delivering a printed copy 
of the Declaration of Blockade to the master, and making appro- 
priate entries of this fact in Electro's log. Probably under the cir- 
cumstances this can be done with safety to Buchanan. 

If the master resists a visit, or if a visit appears unduly hazardous, 
special notice should be given by visible or audible signals. If the 
master ignores these signals and Electra continues on her course, she 
should be seized. There is a strong case for seizure because the 
United States has conformed to the requirements stated in Article 
11 of the Declaration of London. These reflect international custom 
on the point. 

Blockade Must he Effective to be Binding 

The Declaration of Paris, 1856, states in part: "Blockades, in 
order to be binding, must be effective, that is to say, maintained by a 
force sufficient really to prevent access to the coast of the enemy." 
The Declaration of London, 1909, reaffirmed this point in Article 2, 
adding in Article 3 that "effectiveness" of a blockade is a question 
of fact. 

Although a literal reading of the English translation of the 
Declaration of Paris might suggest a blockade was "effective" only 
if it precluded blockade running, by the interpretation generally 
accepted a blockade is effective if maintained by instrumentalities 
sufficient to render dangerous ingress to or egress from the blockaded 
area. 52 Intermittent penetrations by blockade runners do not impair 
the effectiveness of the blockade if the breaching unit risks probable 
seizure or destruction. 



52 This, essentially, is the statement of effectiveness by Dr. Lushington in 
The Franciska /1855/ II Spinks, 113, 120, 130 (reversed on other grounds in 
/1855/ 10 Moore, P.C. 37). The blockade is effective even though some blockade 
runners pass it during darkness or during fog or during the period in which 
a blockading vessel has left her station in pursuit of another blockade runner. 

In The Olinde Rodrigues, 174 U.S. 510 (1899), a French vessel entered San 
Juan, Puerto Rico, after the United States proclamation of blockade of that 
port and upon egress was warned of the blockade by the auxiliary Yosemite, 
the only blockading vessel. Returning to San Juan at a later date, Olinde 
Rodrigues was seized by U.S.S. New Orleans which had replaced Yosemite. 

Accepting Dr. Lushington's statement of "effectiveness" in The Franciska, 
the Supreme Court stated a blockade could be maintained by one cruiser if in 
fact ingress and egress through the blockade were rendered dangerous. 

The Court declared : " * * * Clearly, however, it is not practicable to define 
what degree of danger shall constitute a test of the efficiency and validity of a 



352 

Blockading operations must be continuous. If blockading opera- 
tions are interrupted, the blockade becomes ineffective. A new 
declaration and notifications are required if the blockade is re- 
established. 53 

blockade. It is enough if the danger is real and apparent. * * * " 174 U.S. 515. 
Relevant to the issues of danger are the nature and extent of the coast 
blockaded ; the character, disposition and degree of efficiency of the blockading 
force ; and the number of vessels entering and departing a blockaded port with- 
out examination and seizure compared with the records of vessels examined 
or seized. 

Statements by the commander and officers of a blockading force relative to 
its efficiency and effectiveness have been given weight in prize proceedings. 
Dr. Lushington in The Franciska, commenting upon depositions by Sir Charles 
Napier, commanding the force blockading Riga, states : "If Sir Charles 
Napier, with this evidence before him, with his means of forming a correct 
judgment, has come to the conclusion that the blockade was duly maintained, 
I think that a Judge sitting in this chair would, in the absence of conflicting 
testimony upon such evidence, feel himself compelled to come to a similar con- 
clusion ; and I think so also, more especially because if Sir W. Grant deemed 
the opinion of a commander-in-chief adequate evidence of the competency of a 
squadron to execute a blockade, a fortiori, multum a fortiori, such opinion 
would be of force when the question was of its actual maintenance, and when 
the evidence from which the conclusion was to be drawn consisted of logs and 
other statements, upon which none but a nautical person can form a very 
satisfactory judgment. * * * " II Spinks at 126. 

53 Art. 12, Declaration of London, 1909. See Naval War College, International 
Law Topics, 1909, 41. In The Hoffnung /1805/ 6 C. Rob. 112, a British squadron 
under Sir John Ord, blockading Cadiz and St. Lucar, was driven off by force 
on 10 April. While no blockade was maintained, the British government on 
25 April declared and notified a blockade of the two ports. Lord Collingwood 
reestablished the blockade on 8 June, or at least appeared before the ports on 
that date. 

The court received in evidence a letter of 23 July to neutral consuls in Cadiz 
which might be construed as notification of the reestablished blockade. Hoff- 
nung, however, sailed from Nantes on 17 July and was seized at "a consider- 
able distance" from the coast of Spain. 

Lord Stowell refused to condemn either the Swedish vessel or the Spanish 
cargo, holding the notice of 25 April insufficient to cover the reestablished 
blockade and the evidence of a de facto blockade insufficient to charge the 
vessel or the shippers with knowledge of it. He cited The Christina Margaretha 
/1805/ 6 C. Rob. 63, in which a ship on egress from Cadiz on 4 April passed 
the de facto Ord blockade without hindrance but was seized in the Channel off 
Orfordness by a British cruiser after the declaration and notification of 
25 April. Lord Stowell refused to allow expenses to the captors. 

Referring to this case in The Hoffnung, Lord Stowell commented: (6 C. Rob. 
117) « * * * it was argued on that occasion, that neutrals were bound to act 
upon such presumptions * * * /that the blockade continued or would be 
resumed/ * * * and on the same principle on which it has been held that when 
a blockading squadron is driven off by adverse winds they are bound to presume 
that it will return, and that there is no discontinuance of the blockade. 

"But certainly the two cases are very different. When a squadron is driven 



353 

Continuity is unbroken if units of the blockading force are driven 
away by stress of weather 54 or depart for a purpose connected with 
the blockade, 55 such as pursuit of a blockade runner, and immediately 
return to their stations. There is no requirement that the same units 
or number of units constitute the blockading force for continuity; 

off by accidents of weather, which must have entered into the contemplation 
of the belligerent imposing the blockade, there is no reason to suppose that such 
a circumstance would create a change of system, since it could not be expected 
that any blockade would continue many months without being liable to such 
temporary interruptions. But when a squadron is driven off by a superior 
force, a new course of events arises, which may tend to a very different dis- 
position of the blockading force, and which introduces, therefore, a very differ- 
ent train of presumptions in favor of the ordinary freedom of commercial 
speculations. In such a case, the neutral merchant is not bound to foresee or to 
conjecture that the blockade will be resumed, and, therefore, if it is to be 
renewed, it must proceed de novo, by the usual course, and without reference to 
the former state of facts, which has been so effectually interrupted. 

"On this principle it was that the court held the former blockade to have 
become extinct, and intimated an opinion that there should be a repetition of 
the same measures, on its recommencement, to bring it to the knowledge of 
neutral states, either by public declaration, or by the notoriety of the fact." 

In The Hare /1810/ I Acton, 252, the reestablished blockade by Lord Col- 
lingwood was held a blockade de facto, binding without special notice upon an 
American vessel in egress from Cadiz. By the time of this seizure, the reestab- 
lished blockade had become notorious and vessels were charged with knowledge 
of it when leaving the blockaded port. 

Article 13, Declaration of London, 1909, requires notification if the blockade 
is raised voluntarily or if any limitation to it is introduced. See Naval War 
College, Internatonal Law Topics, 1909, 41. A blockade de facto expires de facto. 
See The Neptunus /1799/ 1 C. Rob. 170, 171. 

54 In The Columbia /1799/ 1 C. Rob. 154, Lord Stowell had "no hesitation in 
saying that the blockade * * * / of Amsterdam / * * * was broken" when the 
master of an American vessel sailed for that port with the intention of enter- 
ing "if the wind should continue unsteady and keep the English cruisers off 
the Dutch coast." See to the same effect The Frederick Molke /1798/ 1 C. Rob. 
86. 

55 See VII Moore, Digest of International Law, 844 (1906) (quoting Instruc- 
tions to U.S. Blockading Vessels and Cruisers, 1898. The same point was re- 
stated in the Instructions of 1917). Professor Stone declares: "* * * It is 
doubtful whether any circumstances other than stress of weather will permit 
withdrawal without interruption of blockade * * * though on principle a brief 
interruption to allow pursuit of a refractory blockade-runner should be on 
the same basis. * * * " Stone, Legal Controls of International Conflict, 496 
(1954) Fn. 33. 

During the Federal blockade of Charleston, S.C., which was maintained in 
1861 by U.S.S. Niagara, this vessel was ordered replaced by U.S.S. Harriet 
Lane. Harriet Lane was "a day or two" late in arriving and Niagara neverthe- 
less left her station. Secretary Seward maintained the blockade had not been 
raised in a manner which required notice of its reestablishment. See VII 
Moore, Digest of International Law, 843 (1906). 



354 

nor is there a requirement that units of the blockading power 
maintain the blockade. Ships of allies may be used. 56 

Exceptions for passage of the blockade may be allowed by the 
blockading power without rendering the blockade ineffective. War- 
ships and military aircraft of nonparticipants may be allowed ingress 
and egress, as may other vessels and aircraft of a nonparticipant 
when either under urgent distress or engaged in bona fide human- 
itarian missions. 57 



56 During the Italian Adriatic blockade in 1915, a number of ships were 
seized by French vessels acting under Italian orders. Some of the claimants con- 
tended the Italian blockade was not effective because maintained in part by 
French warships. The Italian Prize Commission rejected these arguements. 
E.g., The Aghios Spiridon /1916/ Gazetta Ufficiale, 10 Feb. 1916, No. 33; 
Fauchille et Basdevant, Jurisprudence Italienne en Matiere de Prises Mari- 
times,5 (1918). 

The blockade should be effective even if cooperation by vessels of the non- 
declaring power is voluntary. But a claim of ineffectiveness should be avoided 
in these cases by joint declarations and joint notifications. 

57 The exceptions mentioned are relevant principally to the effectiveness of 
the blockade. If the exceptions are granted frequently, the effectiveness of the 
blockade may be brought into question. 

Ajjart from the issue of effectiveness, there seems no limit to exceptions, 
other than in the three categories mentioned, provided neutrals are treated 
impartially. Blockade operations by the United States during the Spanish- 
American War were noted for the numerous exceptions made for passage. See 
Naval War College, International Law Situations, 1901, 166-175. 

Articles 6 and 7 of the Declaration of London, 1909, state exceptions permis- 
sible for warships and vessels in distress. See Naval War College, International 
Law Topics, 1909, 31-32. Warships must conform to the conditions of ingress 
and egress established by the blockade commander. See VII Moore, Digest of 
International Law, 852 (1906). The exception for vessels in distress, apart 
from the Declaration of London, is well established. See The Fortuna /1803/ 
5 0. Rob. 27; The Diana U.S. (7 Wall.), 354 (1868). The Nuestra Senora de 
Regla U.S. (17 Wall.), 354 (1868). Nothing but an absolute and unavoidable 
necessity will justify entering a blockaded port without permission of the 
blockade commander. The Hurtige Hane /1799/ 2 C. Rob. 124; The Elizabeth 
/1810/ Edwards, 198; The Charlotta /1810/ Edwards, 252; The Panaghia 
Rhomba /1858/ 12 Moore P. C. 168. 

There is no mention in the Declaration of London, 1909, of an exception to 
pass the blockade for vessels upon humanitarian missions. Hague Convention 
XI (1907) Article 4, exempts from capture vessels charged with religious, 
scientific or philanthropic missions. An exemption from capture does not mean 
that a vessel or aircraft will be granted an exception to pass a blockade. 

Thus, both public and private hospital ships are exempt from capture or 
attack by Article 22, 24 and 25 of Geneva Convention, Armed Forces at Sea 
(1949). Yet in Art. 31 is made clear that these vessels and their communications 
can be controlled. They can be searched, directed upon a certain course and 
detained for a period of seven days from the time of the interception. 

Substantially the same formulae applied to hospital ships are stated in 



355 

Small unarmed fishing vessels and small boats used in local trade 
on the coast of the blockaded state may be permitted to engage in 
their usual activities without placing the effectiveness of the block- 
ade in jeopardy. 58 This does not apply to deep sea fishing vessels, 



Hague Convention X (1907) which the Geneva Convention will replace. The 
control of a belligerent over these vessels is so extensive that without an attack 
or capture a blockade clearly can be enforced against them. The relevant cases 
are few. 

Whether the object of the voyage is humanitarian or philanthropic is deter- 
mined by the blockader. See The Adula, 176 U.S. 361, 379 (1900) (vessel enter- 
ing port to remove refugees said one employed for the personal profit of the 
charterer "and only secondarily, if at all, for the purpose of humanity") ; The 
Haelen /1918/ Grotius Annuaire International, 254 (chartered vessel carrying 
wheat for children to Belgium not entitled to exemption because not engaged 
in humanitarian work prior to war). 

When the vessel passes the blockade, the voyage must be limited to the 
humanitarian object. The Rose in Bloom /1811/ 1 Dodson, 57 (American vessel 
removing distressed seamen from blockaded port of Bayonne but also carrying 
cargo unrelated to this mission condemned with all cargo except stores carried 
for humanitarian mission) ; The Aghios Nicolaos (No. 2) Journal Officiel 
(1918), 8944 (vessel departed from assigned route and loaded cargo). 

Although the Geneva Conventions of 1949 do not mention blockades, excep- 
tions for humanitarian reasons may be based upon a number of their provisions. 
Ships chartered to transport medical equipment and supplies exclusively in- 
tended for the treatment of wounded and sick members of the armed forces 
or the prevention of disease are to pass. "The particulars regarding their 
voyage must be notified to the adverse Power and approved by the latter." 
Geneva Convention, Armed Forces at Sea (1949), Article 38. 

Medical and religious personnel and equipment to remove wounded and sick 
from a besieged area may be allowed to pass. Geneva Convention, Armed Forces 
at Sea (1949), Art. 18; Geneva Convention, Civilian Persons, Art. 17. 

Neutral craft responding to an appeal by parties to the conflict or those which 
of their own accord collect wounded, sick or shipwrecked persons "shall enjoy 
special protection and facilities to carry out such assistance." Geneva Conven- 
tion, Armed Forces at Sea (1949), Article 21. 

Consignments of medical and hospital stores; objects necessary for religious 
worship ; and essential foodstuffs, clothing and tonics intended for children 
under fifteen, expectant mothers and maternity cases are allowed to pass if the 
belligerent is satisfied there are "no serious reason for fearing" diversions of 
the products for military use or an accrual of a definite advantage to the war 
effort or economy of the enemy and other specified consequences, Geneva Con- 
vention, Protection of Civilian Persons (1949), Article 23. The Conventions 
state certain exceptions apparently mandatory for the blockader. These are 
mentioned in Fn. 59, infra. 

58 See The Paquete Haoana, 175 U.S. 677 (1900). Hague Convention XI 
(1907), Art. 3 exempts fishing boats used for fishing along the coast or small 
boats employed in local trade from capture. The British position has been that 
the exemption is a matter of comity only. E.g., The Young Jacob and Johanna 
/1798/ 1 C. Rob. 20 ; Colombos, International Law of the Sea, 474-175 (3d Ed., 
1954). See The S. S. Doron, 28 Int. L. Rep. 61, (U.A.R. Prize Ct. 1959) (where 



356 

spotter aircraft for fishing vessels or large vessels trading between 
coastal ports. 

The exceptions mentioned are in the discretion of the blockade 
commander upon the conditions prescribed by him. During the 
blockade of North Korea by United States and other naval units, 
no exception was made for small fishing boats and small coastal 
craft. These were seized or destroyed. The purpose was to cut off 
a major source of food supply for the North Korean Army and to 
stimulate anticommunist sentiment among the fishermen. 59 

fishing vessel was seized having on board a powerful radio transmitter and 
receiver, a bathometer and cases containing luminous signals) ; The Goulfar II, 
Ann. Dig. (1943-45), 469, Case No. 169 (Prize Court of Hamburg) ; The Fred 
Neumann, Ann. Dig. (1946), 405, Case No. 175, Conseil des Prises. 

59 See Cagle and Manson, The Sea War in Korea, 296 (1957). In 1938 the 
Korean fishing industry had ranked third in the world and the Koreans had 
consumed about 300,000 tons of fish annually. Hague Convention XI (1907) 
because of the general participation clause, did not apply to the Korean conflict. 
The use of these vessels to mine Korean waters would provide a legal basis 
for attacks upon them. 

Although under ordinary circumstances, the destruction of fishing vessels and 
small coastal shipping would be highly questionable in view of The Paquete 
Habana, Fn. 58, supra, there was a close link between fishing activities and 
supply of the North Korean and Chinese Volunteer Armies, both of which 
tended to live off the land (or sea — as the case might be). 

Disturbance of the fishing fleet had an immediate military bearing upon land 
operations. This will be characteristic of economic warfare under modern con- 
ditions although the relationship between denials of food and the movement and 
tactics of armies unquestionably was accentuated in the Korean conflict. 

Naval practices during World Wars I and II, in which coastal fishing vessels 
and shipping frequently were attacked, have eroded the position taken in con- 
tinental cases and in The Paquete Habana concerning immunity of these vessels. 
The matter is believed usually in the discretion of the blockade commander, 
although this discretion should be exercised to avoid unnecessary destruction. 

This does not mean that destruction of fishing vessels will be discretionary 
under all circumstances. Hague Convention XI (1907), Art. 4 may apply. Also 
under Article 59 of Geneva Convention, Civilian Persons (1949), a contracting 
party is obligated to permit free passage of consignments of foodstuffs, medical 
supplies and clothing to the inadequately supplied population of an occupied 
territory as part of a relief scheme. If an impartial humanitarian organization, 
such as the International Committee of the Red Cross, sought cessation of 
interference with the fishing fleet of the occupied territory, and coupled this 
with assurances that the fish caught would be used for the relief of the needy 
population, it is believed the interferences could not continue consistently with 
the treaty obligation. 

This is one of the few nondiscretionary features related to blockades found 
in the Geneva Conventions of 1949. Others are the obligation to allow a hospital 
ship egress from a port which has fallen into the hands of the enemy, Geneva 
Convention, Armed Forces at Sea (1949), Art. 29; and to allow the passage of 
mail and relief supplies for prisoners of war and interned civilians. Geneva 



357 

A blockade may be limited to ocean surface traffic. The blockade 
need not extend to submarine or air traffic and will be effective also 
despite the exclusion from interception of certain cargo, such as 
the food and medical supplies mentioned in the Declaration of Block- 
ade stated in General Situation 7. 60 

Large cargo submarines may require future "effective" blockade 
to be extended to subsurface as well as surface traffic. Currently 
there is no requirement that a blockade extend to subsurface vessels 
or to aircraft. Depending upon the size and location of the block- 
aded area, the blockader may reasonably require submarines and 
aircraft to travel upon stipulated routes through designated zones or 
may prescribe routes for free travel. 

Probably the most perplexing current issue relating to the effec- 
tiveness of a blockade results from development and use of sub- 
marines, aircraft, mines and electronic scanning devices in naval 
combat. In view of these new developments in hardware and tech- 
niques for its use, how large a force is required for an effective 
blockade and what must be its composition? There are no pat 
answers. 61 

Convention, Prisoners of War (1949), Arts. 70-75; 77; Geneva Convention, 
Civilian Persons (1949), Arts. 106-110. 

60 A clear basis for this exception is to be found in Geneva Convention, 
Armed Forces at Sea (1949), Art. 21. See Fn. 57, supra. Geneva Convention, 
Civilian Persons (1949), Article 59 makes mandatory under certain circum- 
stances passage of food, medical suplies and clothing for the inadequately 
supplied population of an occupied territory. See Fn. 59, supra. 

Economic attacks upon food supply are discussed subsequently. However, it 
is believed the extreme position taken by the Supreme Court of Hong Kong in 
The Paklat 1 Br. & Col. Prize Cases 515 (1915) concerning the discretion of a 
blockader in forbidding relief activity is now subject to exceptions. The Paklat, 
a German (enemy) vessel sailed from Tsingtao with refugees and was captured 
by the British. The vessel sailed before Tsingtao was blockaded but was cap- 
tured after the blockade was established. 

The defense was made that the vessel was engaged in a humanitarian 
mission. Condemning the vessel, the Hong Kong Court stated in dicta : (Ibid., 
518) " * * * /N/o rule of law exists which obliges a besieging force to allow all 
noncombatants or only women, children, the aged, the sick or wounded, or sub- 
jects of neutral Powers to leave the besieged area unmolested. Although such 
permission is sometimes granted, it is in most cases refused, because the fact 
that noncombatants are besieged together with combatants, and that they have 
to endure the same hardships, may, and very often does, exercise pressure upon 
the authorities to surrender." Presumably the Court would consider denials of 
food and medicine to the besieged noncombatants proper to bring pressure for 
a surrender. The case is criticized in Colombos, The Law of Prize, 150-151 
(2d Ed., 1940). 

61 An interesting consideration of new weapons, detection methods, and 
transportation systems available for application to blockade may be found in 



358 

Most commentators upon the issue of "effectiveness" have insisted 
the blockading force contain some surface units. It has been stated, 
for example, that at least one surface unit must be present in the 
blockaded area. 62 

A surface vessel clearly has advantages as a blockading unit if 
the blockading power has air superiority, superiority in surface sea 
power, and antisubmarine warfare capability. Often a surface vessel 
will have adequate personnel to serve as prize crews of seized vessels. 
It has the capacity to rescue survivors of vessels sunk for resisting 
seizure. While the matter is speculative, the examination by a sur- 
face unit of papers of a vessel approaching the blockaded area may 
be facilitated. There is perhaps less of a chance that a vessel will 
attempt to resist a surface unit approaching it to examine its papers 
than it will attempt to resist a helicopter or submarine approaching 
for the same object. 

If the blockader lacks surface capability, then, as did Germany in 
two wars, the tendency will be to resort to air or submarine inter- 
diction. There is no doubt these units can render dangerous ingress 
to and from a blockaded area. The question seems to be whether a 
blockader using only these units can properly discharge the re- 
sponsibilities of a blockading power. One of these responsibilities 
is to maintain minimum order — to enforce the blockade without 
unnecessary destruction. Whether this responsibility can be dis- 
charged using only air and submarine units or using only one or the 
other should depend upon the facts of the particular conflict. 63 

A situation can be imagined in which a blockade is maintained by 
land-based aircraft supported by submarines. Vessels approaching 

Powers, "Blockade: For Winning Without Killing," 84 Naval Inst. Proc., 61-66 
(August 1958). 

62 See II Oppenheim, International Law, 780 (7th Ed., Lauterpacht, 1952). 
(Blockade effective by land batteries if supported by at least one man-of-war.) 
Colombos appears to consider some surface units necessary. See Colombos, In- 
ternational Law of the Sea, 581 (3d Ed., 1954) ; Naval War College, Interna- 
tional Law Studies, 1955, 289 Fn. 13. 

63 See McDougal and Feliciano, Law and Minimum World Public Order, 493- 
497 (1961). These authors state at 494 : 

The lawfulness of the objective of embargoing, more or less compre- 
hensively, commerce with the enemy being thus established, the lawfulness 
of any particular modality of achieving this objective in possible future 
contexts rationally depends upon the appraisal of the relative destructive- 
ness of such modality as compared to any other available alternative 
modality, rather than upon conformity to practices technologically obsolete. 
Such an appraisal, essentially an appraisal of reasonableness in detailed 
context, entails the careful relation of specific components of contexts to 
the relevant competing policies of military effectiveness and minimum 
destruction of values. 



359 

the blockaded area could be notified if necessary and visited by 
helicopters or other suitable aircraft. Necessary seizures could be 
accomplished by submarines; and vessels resisting seizure could be 
destroyed either by submarine or aircraft and survivors perhaps 
rescued by them. 

A blockade of this nature should be distinguished from a war 
zone established as a reprisal in which neutral commerce is indis- 
criminately destroyed without warning, such as the German war 
zones in World Wars I and II, and from attacks upon enemy ship- 
ping as in American operations in the Pacific during World War II. 

If a blockade is frequently challenged (that is, if merchantmen of 
nonparticipants frequently attempt to run it), the presence of some 
surface units probably should be required. If challenges are few, 
submarine and air activity can be combined for the requisite effec- 
tiveness and at the same time discharge the blockader's responsibility 
to maintain minimum order. 64 In special situations, perhaps sub- 
marine activity alone or air activity alone would be adequate — 
although a blockade directed against air as well as surface transit 
would certainly require air support. 

The Blockade Must he Applied Impartially 
to All Vessels and Aircraft 

The vessels of nonparticipants and those of the blockading au- 
thority must receive equal treatment. 65 If the blockade is extended 
to aircraft, the rule of impartiality applies to aircraft as well. 



64 Hague Convention VIII (1907), Article 2 prohibits laying automatic con- 
tact mines off the coasts and ports of the enemy with the sole object of inter- 
cepting commercial shipping. This Convention may not be applicable in a par- 
ticular conflict because of its general participation clause. 

Mining operations may be conducted as reprisals. Mined zones were used 
extensively in World Wars I and II to block or channel commercial traffic. 

This technique may be anticipated in future wars, perhaps with permanent 
blocking of certain channels. Channels may be blocked by nuclear ..devices, 
unsweepable without substantial loss of life and property damage. 

Colombos and other writers have considered Article 2 of Hague Convention 
VIII "illusory," because the state mining the waters may assert an object other 
than intercepting commercial shipping. See Colombos, International Law of the 
Sea, 583 (3d Ed., 1954) ; McDougal and Feliciano, Law and Minimum World 
Public Order, 495 (1961), Fn. 271. 

65 Declaration of London, 1909, Art. 5. See Naval War College, International 
Law Topics, 1909, 31; The Success /1812/ 1 Dodson, 131, 134 ("The measure 
which has been resorted to, being in the nature of a blockade, must operate to 
the entire exclusion of British as well as of neutral ships; for it would be a 
gross violation of neutral rights, to prohibit their trade, and to permit subjects 
of this country to carry on an unrestricted commerce at the very same ports 
from which neutrals are excluded") ; The Franciska /1855/ Spinks, 287, 292. 



360 

A blockading state cannot, for example, exclude merchant vessels 
of nonparticipants and allow ingress and egress to its own merchant- 
men. The impartiality doctrine does not apply to exceptions made 
for passage of the blockade, such as the privilege accorded warships 
to enter and depart blockaded ports. 66 

The decision to grant an exception is made by the blockade com- 
mander in each case presented. Some warships can be granted ingress 
and egress and others excluded. 

Except, however, in the recognized categories in which exceptions 
are permitted, impartiality is the rule. Merchantmen, when neither 
in urgent distress nor engaged in humanitarian missions, are not 
within the categories which a blockade commander can allow to pass 
in his discretion without raising the blockade. If Electra is allowed 
to pass the blockade, not only will an argument be available to non- 
participants that the blockade is raised, but if the blockade is re- 



66 Declaration of London, 1909, Articles 6, 7. See Naval War College, Interna- 
tional Law Topics, 1909, 31-32 ; Colombos, International Law of the Sea, 583- 
584 (3d Ed., 1954). 

The three exceptions — warships, vessels in distress and vessels upon humani- 
tarian missions — do not appear subject to the rule of impartiality. If an excep- 
tion is recognized for fishing vessels and other small vessels in coastal trade, 
although usually enemy vessels will be involved rather than vessels of neutrals, 
probably permission must be granted or withheld impartially. The practice is 
insufficient to evidence clear community policy on the point. 

In transactions other than the "exceptions," the impartiality rule applies 
although the problem is usually presented as one of "effectiveness" of the 
blockade. 

In The Juffrow Maria Schroeder /1800/ 3 C. Rob. 148, Lord Stowell dealt 
with a vessel allowed to enter Le Havre in a lax blockade of that port and 
seized upon coming out. The vessel was restored under the rule of The Neptunus 
/1799/ 2 C. Rob. 110, where the vessel had been misled in entering Le Havre by 
an unintentionally false statement of the captain of a British frigate. 

Lord Stowell commented (at 3 C. Rob. 158) : "It is impossible for me to say 
this, without observing at the same time, on the great mischief that ensues 
from this sort of inattention practised by our cruisers. It is in vain for govern- 
ments to impose blockades, if those employed on that service will not enforce 
them. The inconvenience is very great and extends far beyond the individual 
case ; reports are eagerly circulated, that the blockade is raised ; foreigners take 
advantage of the information ; the property of innocent persons is ensnared, 
and the honor of our own country is involved in the mistake." 

And see The Rolla /1807/ 6 C. Rob. 365 where Sir Home Popham had allowed 
a group of slave ships to enter Montevideo, apparently upon humanitarian 
grounds. Lord Stowell stated : "It would have been better, undoubtedly, and 
more regular, that this intention should have been notified to the governor in 
the same manner as the blockade itself. It would then have been a clear and 
distinct limitation, and the exception would have been understood according to 
its proper limits, because slave ships are in no manner privileged by law, or 
put upon a different footing from other ships." (6 C. Rob. at 373.) 



361 

imposed nonparticipants can complain of discriminatory action in 
the earlier blockading operation. 

The Blockade Must Not Bar Access to Neutral 
Ports or Air Termini 

A naval blockade must not bar ingress to or egress from sea or air 
termini of nonparticipating states. 67 The naval blockade of Nueva 
and Antioka bars no access to ports of nonparticipants unless it may 
be argued that the sea and air activity incident to the blockade is 
so extensive that shipping to ports of nonparticipants is being 
harassed or interdicted. Whether this harassment or interdiction 
occurs is a question of fact in each blockade. 

Objections by nonparticipants based upon such alleged inter- 
ference may be obviated if the blockading authority is prepared to 
assume the administrative burden required to permit free traffic 
through the blockaded area between ports of nonparticipants. 
Flexible navicerting, clearcerting or similar "pass" procedures will 
expedite this movement. If the continuous voyage doctrine is en- 
forced, and enforcement of this doctrine may be unnecessary when 
the naval blockade is quickly imposed and is of short duration, an 
effective intelligence service in ports of origin and call may avoid 
useless interceptions. 

Under special circumstances, not present in General Situation 7, 
the administrative burden upon the blockading authority may be 
exceptionally heavy. Examples are when sea traffic is interdicted : 
(a) into rivers when some riparian states are nonparticipants; (b) 
into canals used as routes between nonparticipating states; and (c) 
when a strait between a participant and nonparticipant is blockaded. 

Unless measures can be taken to permit free movement of traffic 
to and from the ports of nonparticipants under these circumstances, 
the blockading authority assumes the risk of legitimate retaliatory 
action by the nonparticipant as well as claims for losses resulting 
from the interference. Distinguished authorities have suggested in 
some of these situations a blockade valid under international law 
cannot be established. 

Professor Smith, for example, appears to take the position that 
an effective blockade of Copenhagan would not be viable legally 
because it would interfere with access to the opposite coast of 
Sweden. 68 Professor Smith is also of the opinion that "long-distance" 

67 Declaration of London, 1909, Article 1, 18. See Naval War College, Inter- 
national Law Topics, 1909, 25, 18. Colombos, International Law of the Sea, 592 
(3d Ed., 1954). A state may blockade its own ports held by the enemy. II Op- 
penheim, International Law, 771 (7th Ed., Lauterpacht 1952). 

es Smith, The Law and Custom of the Sea, 140-141, (3d Ed., 1959). 



362 

blockades (described in this text as NAVAD blockades) imposed 
against Germany in World Wars I and II are not likely to be 
repeated in any future war in which neutral powers desire and are 
able to insist upon their neutral rights. 69 Judge Lauterpacht states 
that a river cannot lawfully be blockaded except when all the 
riparian states are cobelligerents against the blockading state, or 
when they are all belligerents and the cobelligerents of the blockad- 
ing state assent to the blockade. 70 

Precedents cited to support these positions tend to antedate de- 
velopment of modern communications facilities and means for the 
quick identification of vessels. These new techniques can be employed 
to facilitate free passage of vessels to and from the ports of non- 
participants. A mere apprehension of possible interference by naval 
units of the blockader under such circumstances does not constitute 
interference as a fact. It appears possible to blockade legally any 
area when the appropriate steps are taken to insure free transit 
between ports of nonparticipants. 

The appearance of an international organ, such as the Security 
Council of the United Nations as a blockading authority; or the 
imposition of a blockade upon the recommendation of the Security 
Council or the General Assembly ; should alter radically the limita- 
tion that a naval blockade must not bar ingress to or egress from 
the sea and air termini of nonparticipating states. Only states not 
members of the United Nations would appear to be able to assert the 
claim to noninterference to its full extent. Members of the Orga- 
nization have impliedly waived such objections in Article 2(2) 
and (5) of the Charter. 

In the naval blockade of Korea this issue was not forced. The 
area of blockade operations was limited to avoid interference with 
Soviet ports and also the Soviet-leased North Korean port of 
Rashin. 71 How much commerce moved in and out of Rashin has not 
been disclosed. But with these significant limitations upon the area 
blockaded and the deference shown for Red Chinese and Soviet 
freedom of transit between their respective ports, there was no legal 
basis for Red Chinese and Soviet objections to the blockade. 

Suggested Solution: Special Situation 7 A 

Electra, as a vessel of a nonparticipant in the conflict between the 
United States, Nueva and An^ioka, or at least as a nonparticipant 
in the particular confrontation, should be treated as a neutral in 



™lbid., 141. 

70 II Oppenheim, International Law, 771-772, (7th Ed., Lauterpacht 1952). 

71 See Cagle and Manson, The Sea War in Korea, 281 (1957), Fn. 



363 

maritime blockade. It is important to recognize Scythia's neutral 
status — and consequently the status of Electra — to maintain the 
blockade as an interim measure with maximum economy in the 
expenditure of values both by the United States and by other states 
affected by our naval action. Little could be gained by treating 
Electra as an enemy vessel and much could be lost by accelerating 
the dispute between Scythia and NATO to which United States 
is a party. 

The Captain of Buchanan should repeat his special notice of the 
blockade to Electra allowing the maximum time possible for the 
master to consult his superiors by radio before bringing Electra to. 
If Electra then continues upon her course, she must be brought to by 
force if force is necessary. Electra must then be visited and searched. 
If a search at sea proves impractical, she must be diverted to a port 
where a thorough search can be accomplished. A diversion or seizure 
of Electra should be avoided if this can be accomplished and the 
blockade still be enforced. 

The Captain of Buchanan may be able to persuade the master to 
change course when it becomes evident Electra will be seized if she 
attempts to run the blockade. A failure to seize Electra under such 
circumstances would provide an argument for all nonparticipants 
that the blockade has been raised. 

Although Electra probably is owned by Scythia, she is not a war- 
ship to be granted a privilege to pass in the discretion of the blockade 
commander. There is no indication the vessel is in distress or engaged 
in a humanitarian mission. If Scythia desires to claim immunity of 
Electra from condemnation as a state-owned vessel, this point can 
be raised and tested if she is seized and the United States institutes 
condemnation proceedings. 

The Captain of Buchanan has orders that no cargo will pass in 
ingress except food and medical supplies. No cargo will be permitted 
to pass in egress. He is expected by his superiors to execute his 
orders with deference to the maintenance of minimum public order 
and with a minimum destruction of values consistent with accom- 
plishment of his mission. 

C. CONTRABAND 

Special Situation 7 B 

The Organ of Consultation of the Organization of American 
States, considering the case of the United States placed before it 
as described in General Situation 7, determines Nueva has made an 
unprovoked attack upon the United States. This attack the Organ 
characterizes as "aggression'' under Article 9(a) of the Rio Pact. 



364 

It agrees upon the use of armed force against Nueva and against 
Nuevan forces in Antioka. The use of armed force is to include 
participation by members of the Organization in the naval blockade 
established by the United States. Contraband regulations are to be 
enforced upon the high seas by naval units of the Organization. 

You have been assigned to assist the Advisory Defense Committee 
in developing contraband instructions to be issued to naval forces 
of participating states. These instructions are to secure uniform 
enforcement of contraband regulations and to relate effectively 
contraband enforcement measures to the blockade. 

The Advisory Defense Committee has received a letter from the 
Secretary of Defense of the Antiokan government in exile recom- 
mending food and medical supplies be placed upon the contraband 
list. Review the principles of contraband and formulate your recom- 
mendation to the Advisory Defense Committee whether a contraband 
list is necessary and, if so, whether food and medical supplies should 
be listed as contraband. 

Discussion : Special Situation 7 B 

The history of contraband reveals a constant increase in the eco-> 
nomic requirements for war and a consistent readiness of belligerents 
to interdict transport of all resources useful to their adversaries in 
warfare. Items listed as contraband and the techniques developed 
for enforcing contraband regulations have been products of rough 
and ready compromises between belligerents and neutrals. Bel- 
ligerents, usually, have enjoyed both the initiative and bargaining 
power as these compromises were achieved. Although the initiative 
will remain with the belligerent, the bargaining power of the bel- 
ligerent may vary with the conflict situation. 

Contraband Principles in Declaration of London 

A "peacetime" consensus among major maritime nations con- 
cerning contraband was developed at the London Naval Conference 
of 1908 and expressed in the Declaration of London, 1909. This 
unratified Declaration has been described previously in this Chapter. 
Many of the basic contraband principles expressed in the Declaration 
were heavily eroded by the pressures of two global conflicts. How- 
ever, some may still be applicable in limited wars. 

The Declaration continued a distinction between "absolute contra- 
band" and "conditional contraband," a distinction rooted in thei 
writing of Hugo Grotius and the Treaty of Whitehall (1661) 



365 

between England and Sweden. 72 The Declaration also introduced a 
list of "Free" goods. 

Both categories of contraband were limited to goods destined for 
the enemy. The potential use of the goods defined the category. 
Absolute contraband included items exclusively for war use. 73 Con- 
ditional contraband included items susceptible to use in warfare 
but not exclusively for war use. 74 Food, money and fuel, for ex- 
ample, were listed as conditional contraband. 

A belligerent was permitted additions to either the absolute or 
conditional contraband lists by notification to neutrals. However, a 
belligerent was limited by the use classification — that is, only items 
by nature exclusively for war use could be added to the absolute 
contraband list. 75 A list of free goods further reduced the scope of 
belligerent action. 

The "Free List" was stated in two Articles of the Declaration. 
Article 28 listed principally raw materials and machinery used at 
the time for civilian end-products. Article 29 covered medical and 
hospital supplies for the care of the sick and wounded and articles 
and materials used on board the vessel. A belligerent could not place 
items from the free list on either the absolute or conditional contra- 
band lists. Hospital ships and supplies aboard them were not 
mentioned in the Declaration because covered by Hague Convention 
VIII (1907). 

The distinction maintained in the Declaration between absolute 
and conditional contraband was the basis for differing treatments of 
the categories in applying the "ultimate destination" doctrine. The 
burden of proof resting upon the belligerent also differed. 

If goods on an intercepted vessel were absolute contraband, the 
goods could be "captured" (seized) 76 if destined for territory belong- 
ing to or occupied by the enemy or if destined for enemy forces. 77 
The goods could be seized although transshipment was to be through 
neutral territory. 



72 The early history of contraband is developed in detail in Pyke, The Law of 
Contraband of War, 29-54 (1915). Shorter accounts may be found in Naval 
War College, International Laic Situations, 1933, 2-5 and Colombos, The Inter- 
national Law of the Sea, 541-546, (3d Ed., 1954). 

73 See Naval War College, International Law Topics, 1909, 59 (Art. 22). 
™Ibid., 63 (Art. 24). 

™Ibid., 61 (Art. 23) ; 67 (Art. 25). 

76 The French version of the Declaration uses "saisissables." As pointed out 
by Smith, "capture" is inaccurate in this context because title does not pass 
until condemnation. See Smith, The Laiv and Custom of The Sea, 126 (3d Ed., 
1959). 

77 Naval War College, International Law Topics, 1909, 75, Fn. 2, (Art. 30). 



366 

The ultimate destination doctrine was rejected for conditional 
contraband unless goods were shipped to a landlocked enemy. 78 
Unless for a landlocked enemy, the goods could not be seized if to be 
discharged at a neutral port. The requirement of enemy destination 
as a basis for seizure was retained. 

Conditional contraband, not to be discharged at a neutral port, 
could be seized if for the use of the enemy armed forces. If not to 
be discharged at a neutral port, the goods could be seized if for the 
use of an enemy government department and also for war use, 
except for bullion, gold and silver coin and paper money for which 
no special use had to be shown. 79 

As to both absolute and conditional contraband, the ship's papers 
were conclusive proof of her voyage, absent an unexplained devia- 
tion from her route. 80 Since the burden of proof of ultimate destina- 
tion (for absolute contraband) or the specific enemy destination (for 
conditional contraband) rested upon the belligerent, the evidential 
weight ascribed by the Declaration to ship's papers created a sub- 
stantial obstacle to seizures and condemnations. 

For absolute contraband, the belligerent had the benefit of a 
conclusive presumption of ultimate hostile destination if the goods 
were documented to be discharged at an enemy port, if the vessel 
was to call at enemy ports only, or if the vessel was to touch at an 
enemy port or join enemy forces before touching a neutral port. 81 
Although the belligerent might prove hostile destination without 
the benefit of these presumptions, this would be difficult without a 
highly effective system of economic intelligence producing informa- 
tion of a nature which could be disclosed in judicial proceedings. 

For conditional contraband, a rebuttable presumption could be 
raised in two situations that the goods were destined for the enemy 
armed forces or an enemy governmental department. 82 If the con- 
signment was addressed to enemy authorities or to a merchant 
established in an enemy country and known to supply the enemy, a 
presumption of the specific hostile destination was raised — probably 
that the use was either for the armed forces or an enemy govern- 
mental department. If the consignment was addressed to an enemy 
fortified place or some other base for his armed forces, the presump- 
tion apparently was that the goods were for use of the armed forces. 

Unless these presumptions were raised the destination was pre- 



78 Ibid., 85 (Art. 35). Specific use of the armed forces or a governmental 
department of the landlocked enemy was necessary for seizure. 
™Ibid., 79 (Art. 33) ; 65 (Art. 24(4) ). 
*°Ibid., 77 (Art. 32) ; 85 (Art. 35). 

81 Ibid., 75 (Art. 31). 

82 Ibid., 83 (Art. 34). 



367 

sumed innocent. As with absolute contraband, the belligerent might 
produce other evidence to rebut the presumption of innocence. 

Except for conditional contraband documented to be unladen at 
a neutral port when not for the use of the armed forces or a govern- 
mental department of a landlocked enemy, either conditional or 
absolute contraband could be seized on the high seas or in the ter- 
ritorial waters of belligerents at any point in the voyage of the 
transporting vessel. 83 The vessel might or might not be seized. 

If the contraband cargo, by value, weight, volume and freight, was 
half or less of the cargo, the vessel might not be seized if the master 
was ready to deliver the contraband to the belligerent ship. 84 Cir- 
cumstances might preclude this delivery. If the contraband could 
not be destroyed under the supervision of the belligerent, the vessel 
would be seized but not ultimately condemned. 

Apart from the rule based upon the proportion of contraband 
to the whole cargo, whether a seized vessel was condemned depended 
upon her knowledge of the state of hostilities and the contraband 
declaration. 85 A vessel was deemed aware of hostilities if she left 
an enemy port after hostilities opened. She was also deemed aware 
of a state of war or a contraband declaration if she left a neutral 
port a sufficient time after notification of hostilities or of a contra- 
band declaration to the port power. 

If the vessel was ignorant of hostilities and the contraband 
declaration, the contraband could be preempted but not confiscated. 88 
The vessel and noncontraband cargo were not condemned. The rule 
permitting delivery of small amounts of cargo without seizure of 
the vessel applied to these vessels as well as to vessels knowing of 
hostilities. 

There was no permanent "contamination'' of a vessel due to 
previous carriages of contraband. 87 Such a vessel could not be seized 
after its contraband had been discharged. However, contraband 
carried on a vessel infected noncontraband under the same owner- 
ship, rendering the noncontraband subject to condemnation. 88 

Prior to the Declaration of London, major disputes between bel- 
ligerents and neutrals tended to focus upon two issues. The first 
concerned items which should be listed as contraband and items 
which should not be listed. The second concerned treatment of goods 



83 Ibid., 89 (Art 37). 

84 Ibid., 89 (Art. 40). 

85 Ibid., 93 (Art. 43). 

86 Ibid., The Declaration states "not * * * condemned except with indemnity. 
^ Ibid., 89 (Art. 38). 

88 Ibid., 93 (Art. 42). 



368 

and transporting vessels in which the goods were shipped to neutral 
territory. On some points belligerents and neutrals agreed. 

Contraband enforcement was understood as a belligerent act, an 
act of war in the sense of warfare in its 19th and early 20th century 
forms. Without belligerency there was no contraband. 89 

There was agreement that contraband related to property owned 
by neutrals. A different regime applied to enemy property at sea. 90 
How ownership should be determined was disputed. 

All agreed weapons and military equipment should be contraband. 
Beyond this there was dissent. As stated by Wheaton in 1815 : 91 
The almost unanimous authority of elementary writers, of 
the ordinances of belligerent powers, and of treaties, agrees to 
enumerate among these * * * /contraband of war/ * * * all 
warlike instruments, or materials by their own nature fit to be 
used in war. But beyond this enumeration, there is some difficulty 
in reconciling the different authorities, which are extremely 
discordant and at variance with reason and justice. * * * 
All agreed that in proper cases contraband could be intercepted 
on the high seas and both contraband and the vessel carrying it 
could be seized. The belligerent was conceded to have the initiative 
in this matter since the belligerent could establish contraband lists. 

The two World Wars reinforced basic understandings antedating 
the Declaration of London. But these wars also indicated the contra- 
band listings in the Declaration could not remain firm nor could a 
distinction in practice be made between absolute and conditional 
contraband in modern general military conflict. 

World Wars I and II and the Declaration of London : 
Contraband Features 

As previously described in this Chapter, 92 contraband principles 
and procedures of the Declaration of London were applied in limited 
conflicts prior to World War I. But World Wars I and II revealed 
the irrelevance to modern general military conflict of some of the 
postulates of the Declaration and the inadequacy of the contraband 
procedures deemed appropriate by the 1908 Conference. 

The two global conflicts demonstrated unequivocally the range of 
resources and diversity of goods required to support modern general 



89 See he Comte de Thomar, I Pistoye and Duverdy, Traite des Prises Mari- 
times, 390 (1855). Discussed in Chapter IV, B., Situation 6. 

90 Contraband can relate to enemy property. For example, under Art. 2 of the 
Declaration of Paris the neutral flag covers enemy goods except contraband 
of war. 

91 Wheaton, The Laiv of Maritime Captures and Prizes, 175 (1815). 

92 See subdivision A(l), supra., 653-662. 



369 

military operations. Demonstrated also was the high degree of 
governmental control required over the internal economy of a 
combatant state to permit its resources to be fully mobilized. New 
resources required for war rendered the contraband lists of the 
Declaration useless. New controls by combatant governments over 
private resources needed for war revealed as totally anachronistic 
the features of proof thought important by the London Conference 
for the hostile destination of conditional contraband. 

The institutions for modern contraband control were developed 
by the Allies in World War I. The same institutions were used in 
World War II, although in this second global conflict, contraband 
control measures were refined and more comprehensively and ruth- 
lessly applied than in the first. 

In 1916, the Allies abandoned the Declaration of London as a 
legal guideline in economic warfare. 93 Article 40 concerning the 
proportion contraband must bear to the total cargo to permit con- 
demnation of the vessel was expressly retained. With the relics of 
the Declaration thus put to rest, and their memory scarcely honored 
by mention during World War II, 94 the Allies turned to economic 
warfare as a secondary policy device in its modern form in general 
war. 

In both wars, suspected vessels were diverted to contraband 
control stations for examination. Their papers and cargo were there 
carefully examined, use being made of the extensive intelligence 
often available. In England, these examiners were under close ad- 
ministrative control. A Contraband Committee in London, during 
World War II an interdepartmental committee of the Ministry of 
Economic Warfare, determined which cargoes and vessels should 
be released and which should be placed in custody of the Marshal of 
the Prize Court. 

Developments in sea warfare — surface, subsurface and air — dis- 
couraged traditional visit and searches at sea except in areas remote 
from intensive combat operations. Unacceptable hazards were posed 
by exposure of the belligerent vessel and the vessel visited to sub- 
marine or air attack. 

Naval forces were required to protect commerce, support troop 
movements and cover landing operations. Strict economy had to be 
practiced in deploying Allied naval units for control of possibly 
hostile sea traffic. German naval strength was devoted to inter- 
dicting sea commerce by destruction. This, coupled with destruction 



93 Order-in-Council, 7 July 1916, 110 Brit. & F. St. P., 236 (1916). 

94 See Pari. Papers, Japan No. 1 /1940/ (Asama Maru) ; The Sidi Ifni, /1945/ 
Ll.P.C. (2d) 200, 204, Ann. Digest (1943-45), 549, 552, Case No. 197. 



370 

of commerce in Allied operational zones in European waters and the 
Mediterranean, eliminated much commerce which Allied naval units 
might otherwise have been called upon to divert. 95 

The amount and diversity of cargo on an average freighter, many 
times the tonnage of small craft involved in the Napoleonic war 
cases of Lord Stowell, rendered sea examinations of cargo perfunc- 
tory and useless in any event. Documentation of the cargo could be 
misleading. Business subterfuges for carrying contraband were 
familiar in World War I and increased in sophistication and gen- 
erality of use in World War II. The papers of a ship could not be 
relied upon to indicate her destination. 

Information needed to determine the necessity for seizure of ships 
and cargoes was obtained from sources other than the ships them- 
selves. This information could not be communicated in meaningful 
form to naval officers enforcing contraband regulations at sea. 

Land transportation improvements in neutral territory adjacent 
to that of the adversary significantly complicated interrupting the 
flow of the adversary's supplies. The problem was complicated 
enough during World War I due to the improved rail transportation 
in Europe. After the fall of France in 1940 and Italy's entrance into 
the war as an Axis partner, German hegemony on the continent 
reduced the effectiveness of naval operations as the primary instru- 
ment to interrupt commerce. At the same time elimination of many 
"adjacent" neutrals somewhat simplified and encouraged centraliza- 
tion of nonnaval administrative controls over contraband. 

The reach of these highly centralized administrative institutions 
was extended to the source from which contraband was derived. 
Naval units were relegated to the mundane tasks of enforcing 
diversions of ships to contraband control points. 

During World War II, aircraft were brought within the British 
Prize Act and could be diverted. 96 Aircraft as well as surface craft 
could be used to force diversions. But even this form of naval activity 
in economic warfare gradually diminished as the war progressed. 97 

Na/vicerting 

The inconvenience to neutrals of diversions during both wars was 
reduced by navicerting. Navicerting began in 1916, but was not used 



95 See Fitzmaurice, "Some Aspects of Modern Contraband Controls and the 
Law of Prize," 22 Brit. Y. B. Int. L., 73, 74, Fn. 3 (1945). 

9«2 & 3 Geo. 6, c. 65 (1939). 

^Diversions upon reasonable suspicion were sustained by the Prize Courts. 
E.g., The Mini (1947), 115. And see Discussion: Special Situation 7 C, infra., 
788-824. 



371 

extensively in World War I. 98 During World War II, until the fall 
of France in 1940, the Allies used a "voluntary" form of navicerting. 

In order to avoid extended detentions of vessels diverted to 
contraband control ports or voluntarily entering, the British first 
experimented with "holdback" guarantees. The ship was allowed to 
proceed to a neutral port after giving a guarantee not to deliver 
goods being considered by the Contraband Committee to the con- 
signee and to return these goods to an Allied port if the Contraband 
Committee decided on seizure. 

There were complications to this arrangement. If the Committee 
directed return of the goods, they might subsequently be released 
by the Prize Court after having been exposed unnecessarily to war- 
time sea transit. An even greater difficulty was the unwillingness of 
neutral port authorities to release the goods for return. The local 
export licensing system or other devices might be used to block the 
goods. The holdback guarantee system was a concession to neutral 
shippers which tended to weaken contraband control. 

By the navicert system commenced in December 1939 (the "volun- 
tary" system) two basic navicert forms were issued, Ship Navicerts 
and Cargo Navicerts. The master of the ship or his agent could 
obtain a ship navicert if the entire cargo was navicerted. There were 
variations in cargo navicerts. 

A "Z" navicert, used only under the voluntary system, was issued 
by the British or French representative in the country in which 
the application was sought on his own responsibility. Referred List 
Navicerts could be issued only after instructions from the Ministry 
of Economic Warfare. The Referred List covered major items of 
contraband normally exported by the neutral country concerned." 

If a ship sailed with a ship navicert, she usually would be cleared 
at sea by British or French patrols by identification and without 
diversion. If a ship sailed without a ship navicert, but with fully 
navicerted cargo, she might be cleared at sea only if circumstances 
permitted a visit and she had no mail or passengers. Otherwise, she 
would be diverted to a contraband control base. Seldom would she 



98 See Ritchie, The Navicert System During the World War (1938). Navicert- 
ing is a refinement of the older technique of "ship's passes" mentioned in the 
Reprisals Order-in-Council, 1915, to be received by vessels diverted from 
German to neutral ports. A good brief description of World War I contraband 
control methods can be found in Ritchie, 1-4 and in Salter, Allied Shipping 
Controls, 98-116 (1921). 

99 "Mewcerts" were briefly issued for cargo coming from Egypt without 
references to the Ministry of Economic Warfare. These were discontinued in 
January 1940. 



372 

be detained at the base for a long period unless some of her cargo 
navicerts had been revoked or destination of the cargo was suspect. 

Neither the ship navicert nor the cargo navicerts were guarantees 
against interception or seizure. Spot interceptions and diversions 
were required to check clandestine carriage of contraband in 
navicerted ships. A neutral destination might become hostile. A 
delay might occur between the time the navicert issued and the 
shipment, additional facts coming to the attention of the belligerent 
in the meantime. 

But possession of ship and cargo navicerts was a great convenience 
to merchants. Shipowners, desiring ship navicerts, refused to carry 
unnavicerted cargo. Owners of navicerted cargo would not employ 
a ship which could not obtain a ship navicert. 

The voluntary system was first used between the United States and 
certain neutral European countries and thereafter extended to other 
neutrals. In the summer of 1940, it was used by practically all 
shippers not engaged in carrying contraband. 

While the voluntary system had been supplemented by over sixty 
agreements with neutral companies — shipping companies, importers 
and exporters — in which these companies agreed to use the navicert 
system when available, to refrain from buying from or selling to 
the enemy, to obtain guarantees of neutral consumption from pur- 
chasers, and to undertake similar projects supporting the economic 
warfare program, it was decided by the British in 1940 to extend 
the navicert system and place it on a semicompulsory basis. 

This was done by a "Reprisals" Order-in-Council on 31 July 
1940. 10 ° Both Ship and Cargo Navicerts were issued. By the terms 
of the Order an unnavicerted ship or cargo was subject to seizure. 
A rebuttable presumption was raised that the ship or cargo, as the 
case might be, had a hostile destination. 

Although vessels and cargoes were seized for the absence of 
navicerts, in no case was a vessel or cargo condemned solely on the 
strength of the rebuttable presumption of enemy destination. If 
the Court condemned the vessel or cargo, other factors creating 
suspicion were always present. 101 



wo s. R. & O., 1940, No. 1436. 

ioi The Monte Contes, /1943/ A.C. 6; The Sidi Ifni, /1945/ Ll.P.C. (2d) 200, 
Ann. Dig. (1944-45), 549, Case No. 197. In The Ole Wegger, Ann. Dig. (1943- 
45) the German Prize Court held Norwegian whaling vessels in possession of 
British ship warrants assisting and facilitating the military and economic 
conduct of warfare by the British and thus guilty of "unneutral service." On 
the issues presented in "unneutral service" see II Oppenheim, International 
Lata, 831-846 (7th Ed., 1952) ; Colombos, International Law of the Sea, 564- 
576 (3d Ed., 1954) ; Smith, The Law and Custom of the Sea, 131-137 (3d Ed., 



373 

Coupled with the semicompulsory navicert system was a system 
of "Ship Warrants" supplying a sanction for navicerting. A ship 
warrant, issued to the owner of a neutral ship, guaranteed the ship 
access to British controlled shipping facilities. These included 
bunkers, stores, dry docking, insurance and credit. 

In return, the owner agreed to comply with economic warfare 
regulations, including a commitment not to sail to or from navicert 
areas without a ship navicert. Effectiveness of the ship warrant as a 
sanction was diminished by British inability to control resort by 
shipowners to other sources for services as for example bunkering 
facilities and credit controlled by the United States and other 
neutrals. The sanction was strengthened when the United States 
entered the war. 

The ship warrant system functioned properly only when com- 
bined with navicerting. For this reason it was not particularly 
effective in the Pacific before Japanese entry into the war, there 
being no adequate administrative machinery in the Pacific area for 
navicerting ships and cargoes. 

After United States entry into World War II, the British con- 
tinued control of the navicert system. The United States, in lieu 
of navicerts, licensed its own exports. Imperial Export Licensing 



1959). The Declaration of London, 1909, contained provisions on "unneutral 
service" in Articles 45-47. 

Legal problems in "unneutral service" tend to be peripheral to the conduct 
of economic warfare, yet are sometimes involved directly, as in Captain Wilke's 
interception of Trent, discussed in Chapter I. Personnel instructed to engage 
in economic warfare were removed from Trent. 

A vessel or aircraft may "assume enemy character," that is, operate under 
de facto enemy control. Assumption of enemy character is considered in Special 
Situation 7 D, infra. A vessel or aircraft may also give "unneutral assistance" 
to the enemy. This may become a significant economic warfare problem in large- 
scale carriages of contraband or enemy property. The unneutral activity may 
be a minor feature in the entire voyage or flight. The latter is often described 
as "unneutral service." 

The consequences of "unneutral service" may vary from a warning to seizure 
of the vessel or aircraft and confiscation to the cargo. Factors considered in 
evaluation "unneutral service" are: (1) The degree to which the unneutral 
conduct is likely to enhance the military capabilities of the enemy. (2) The 
nature of the contraband goods, the character and status of prohibited pas- 
sengers, and the nature and volume of prohibited information collected and 
transmitted. (3) The degree to which the vessel or aircraft apparently is sub- 
ject to enemy control. (4) The proportion which the unneutral activity bears 
to the total activity on the voyage or flight of the unit. (5) The extent to 
which the unneutral conduct apparently is known to the owners and operators 
of the unit. 



374 

in Commonwealth countries was accepted as equivalent to cargo navi- 
certing for the issue of ship navicerts. 102 

Although British semicompulsory navicerting was initiated by 
a Reprisals Order-in-Council, its basic feature was nothing more 
than a play on the older technique of ship's passes. If the belligerent 
could seize contraband, certainly the belligerent could waive this 
right in its discretion by issuing navicerts. The burden of proof 
feature, as one writer aptly commented, 103 is simply a matter of 
municipal prize court procedure. So long as neutrals have adequate 
notice of the change, and a hearing is afforded, the burden of proof 
should be in the discretion of local authorities. Placing the burden 
on the claimant, during periods when many seizures are made, is 
simple administrative common sense. 

The navicert order of 1940 may have been framed as a reprisal 
to apply it to goods not subject to seizure as contraband or enemy 
property. The expansion of contraband lists, however, had left 
little property in either category. 

An extension of contraband controls to property not subject to 
seizure may have an inherent virtue of administrative convenience. 
Nevertheless, a Board of Economic Warfare should not dissipate its 
energies by denying navicerts to innocent trade when time could be 
expended with greater advantage in interdicting trade of interest to 
the enemy. The injured owner of an innocent cargo or ship during 
World War II had little redress in any event other than recovery of 
his property seized under the Reprisals order. There were no damages 
for wrongful seizure or diversion. 104 

Expansion of Contraband Lists 

Practice in the two world wars preserved in all essentials the 
basic features of contraband. Contraband goods must be of a nature 
which will in some way further the enemy war efforts. The goods 
must also have a hostile destination. 

However, the Declaration of London contraband lists were quickly 
abandoned by the Allies and Central Powers in World War I. New 
lists ultimately included virtually all goods of possible use in war 



102 A comprehensive account of World War II navicerting procedures is to be 
found in I Medlicott, The Economic Blockade, 94-105, 343-350, 436-448 (1952) ; 
II Medlicott, The Economic Blockade, 153-159, 420-427 (1959). 

103 Rowson, "Prize Law During the Second World War," 24 Brit. Y.B. Int. L., 
160,196-197 (1947). 

104 See Fitzmaurice, "Some Aspects of Modern Contraband Control and the 
Law of Prize," 22 Brit. Y.B. Int. L., 73, 88-89 (1945). 



375 

except medical and hospital supplies, luxury items in a limited 
category and supplies used on board ship. 105 

England and France commenced World War II with a short 
contraband list, issued in 1939 and based on the United States 1917 
Naval Instructions for Maritime Warfare. This list contained four 
categories of absolute contraband: (1) arms, ammunition, ex- 
plosives and chemicals; (2) fuel and means of transportation; (3) 
means of communication; and (4) coin, bullion, currency and 
evidences of debt. Food, foodstuffs and clothing were conditional 
contraband. 106 

Some of the combatants in World War II continued detailed lists 
— but all ultimately had lists as broad or broader in coverage than 
those in World War I. This expansion of contraband was a highly 
conventional and legally unassailable reaction to the all embracing 
economic demands of modern war. 

As the contraband lists were expanded, certain earlier problems 
which vexed merchants and publicists began to disappear. One was 
the doctrine of infection, covered by Article 42 of the Declaration of 
London and much discussed by prize courts and writers in the 18th 
and 19th centuries. All of the cargo of the owner on board ship was 
likely to be contraband. Thus there was nothing to infect — all of it 
suffering the same malady. 

The second and third provisions of the Declaration of Paris, 1856, 
became obsolete. Contraband goods were excepted from the immunity 
granted enemy goods under a neutral flag and neutral goods under 
an enemy flag — yet most goods were contraband under modern lists. 

The special enemy destination, expressed in Article 25 of the 
Declaration of London as a condition for seizure and condemnation 
of conditional contraband, was eliminated as a contraband feature 
by judicial recognition of governmental economic controls. With 
elimination of special enemy destination for seizure and condemna- 
tion of conditional contraband; and extension also of the ultimate 
destination principle to conditional contraband — discussed in Special 
Situation 7 C ; the importance of distinguishing between contraband 
categories diminished. 

During World War I, Sir Samuel Evans, in The Kim, 101 recog- 
nized a presumption that all conditional contraband with a hostile 
destination was either for enemy military forces or for the govern- 
ment of the adversary for war use. This presumption was based 



105 See Naval War College, International Law Documents, 19^-^5, ZQtrAI. 

106 vil Hackworth, Digest, 24-26 (1943). 

107 /1915/, 215, 280-282. 



376 

upon the control exercised by combatants over private property for 
war ends by requisitioning and other devices. 

The feature of increasing governmental control over its internal 
economy for war purposes and the relation of this feature to 
contraband control had been observed during the Napoleonic wars. 108 
These facts of wartime governmental control were regularly relied 
upon by the German Prize Courts. 109 The presumption was con- 
tinued in prize proceedings in World War II ; 110 and has been 
stressed in recent prize cases. 111 

Despite changes in presumptions concerning the special enemy 
destination of conditional contraband, thereby shifting to the claim- 
ant the burden of showing an inoffensive destination, there still may 
be reason for a tenuous distinction between the categories. There 
is a suggestion, for example, in British prize practice during World 
War II, that a distinction may be made if property is shipped before 
hostilities commence. If the contraband is conditional, a mere 
diversion of the goods before seizure may save them from condemna- 
tion. 112 But if the contraband is absolute, not only a diversion of 
the cargo but adandonment of the original intention of hostile 
destination by objective acts is required. 113 

There is also propaganda value in a conditional contraband list 
when items other than those solely of military application are to be 



!08E.g., VII Moore, Digest, 676-677 (1906) (Hammond, British Minister to 
Jefferson, Secretary of State, 1793 ) . 

109 E.g., The Maria, 10 A.J.I.L., 927 (Imperial Supreme Prize Court, 1915) ; 
See Richards, "Contraband," 3 Brit. Y.B. Int. L., 1, 9-10, (1922-23). 

110 The AUvaki, /1940/, 215, 218; The Monte Gontes, /1944/ A.C. 6; The Sidi 
Ifni, /1945/ Ll.P.C. (2d) 200, Ann. Dig. (1943-45), 549, Case No. 197; The 
Nailsea Court, Ann. Dig. (1946) (Conseil des Prises, 1946), 425, Case No. 182. 
See Rowson, "Prize Law During the Second World War," 24 Brit. Y.B. Int. L., 
160, 189 (1947). 

111 See The Fedala, Int. L. Rep. (1957), 992; and in Annual Digest (1949) 
The Klipfontein (Case 210) ; The Bataan (Case 211) ; The Frankisky (No. 1) 
(Case 212) ; The Triport (Case 214) (all by Prize Court of Alexandria, Egypt). 

i- 12 The Glenroij (Cargo ex.) (No. 2), /1943/ Ll.P.C. (2d) 153. However, the 
goods were condemned on appeal as tainted with enemy ownership under the 
principle of The Anglo-Mexican, /1918/ A.C. 422. See Part Cargo ex.M.V. 
Glenroij, /1945/ A.C. 124. 

113 The Charles Racine, /1944/ Ll.P.C. (2d) 177. On appeal /1946/ Ll.P.C. 
(2d) 215, Ann. Dig. (1946) 414, Case No. 179. See The Gabbiano, /1940/ 166, 
168 (absolute contraband — voluntary diversion). Cf. The Twee Ambt, /1920/, 
413 (unexecuted intent of master to run for enemy port not basis for con- 
demnation). A possible solution may be preemption of the goods — compensating 
the owner. E.g., The Sorfareren, /1915/ 1 B. and C.P.C. 580; The Selandia, 
Ann. Dig. (1938-40), 571, Case No. 218 (South Africa, Supreme Prize Court, 
1940). 



377 

interdicted. Intercepting shipments of food and clothing has stim- 
ulated much antagonism among neutrals in the past. The food or 
clothing supply of a neutral may be constricted; producers or 
vendors of food in neutral food exporting states may be injured; 
the civilian population of the enemy may be starved or frozen to 
the dismay of neutral beholders. Placing food and clothing on a 
conditional contraband list suggests the belligerent is sensitive to 
humanitarian dictates even though in practice food is treated as 
absolute contraband. 

Food as Contraband 

The general population growth, coupled in many areas with 
natural limits upon agricultural production by current methods, will 
make belligerent operations against an adversary's food supply 
probable features of future general and limited wars. 

These- operations may involve the use of chemical or biological 
weapons against plants or domestic animals. 114 The use of rice blast 
against the Japanese crop was considered in "World War II but 
rejected. 115 Chemical agents have been used against insurgent food 
crops in South Vietnam. 

Operations can also be expected against the food supply of an 
adversary by interdicting its transportation, although the circum- 
stances of a particular conflict, such as that described in General 
Situation 7 may make interdiction of food transport undesirable. 
The British philosophy during World "War II was summed up by 
Sir Winston Churchill : 116 

* * * Let Hitler bear his responsibilities to the full, and let 
the people of Europe who groan beneath his yoke aid in every- 
way the coming of the day when that yoke will be broken. 
Meanwhile, we can. and we will, arrange in advance for the 
speedy entry of food into any part of the enslaved area when 
this part has been wholly cleared of German forces and has 
genuinely regained its freedom. We shall do our best to en- 
courage the building up of reserves of food all over the world 
so that there will always be held up before the eyes of the 
peoples of Europe — including — I say it deliberately — the Ger- 
man and Austrian peoples, the certainty that the shattering of 

114 See Rothschild, Tomorrow's Weapons. 121-131 (1964) for toxins useful in 
antifood warfare. As to legal problems, see Xeinast, -United States Use of 
Biological Warfare" 24 Mil L. Rev.. 1 (1964) : Brungs, "The Status of Bio- 
logical Warfare in International Law," 24 Mil L. Rev.. 47 (1964). 

115 Leahy, i" Was There. 439-440 (1950). 

116 See I Medlicott, The Economic Blockade. 666, App. II (1952) (Churchill 
statement on Relief to House of Commons, 20 August 1940). 



378 

the Nazi power will bring to them all immediate food, freedom 

and peace. 

Interdicting the enemy food supply will weaken his labor force. 
Automation may offset this to a degree but is unlikely to develop 
as effective defense. Hardships suffered on the home front directly 
affect the morale of troops. This can be reduced to a degree but not 
precluded by censorship. 

Denials of food can influence the deployment of enemy troops. 
This was clearly demonstrated during World War I. During World 
War I, the German government abysmally mismanaged its food 
resources. It failed to prevent "holdbacks" by local producers, with- 
drew excessive agricultural labor for the armed forces, failed to build 
up a sufficient stockpile of chemical fertilizers, and diverted an 
exorbitant amount of food into military supply channels. 

By 1915, Germany had been brought internally to the brink of 
chaos by Allied contraband controls. When Romania entered the war 
in 1916, Germany was thus forced to invade that country promptly 
to secure the Romanian wheat supply. Even so, she almost collapsed 
during the winter of 1916-17. 

Sir Arthur Salter states : m 

* * * In what precise proportions privations at home and 

defeat in the field contributed to the acceptance of the Armistice 

cannot be stated. But the blockade may justly claim to have 

shortened if not to have won the war. It succeeded at the moment 

when the counterblockade by submarine had just definitely 

failed. * * * 

Nazi Germany profited by the earlier experience. Although in 
1938 she was estimated to have food stocks on hand for only a few 
months of hostilities, by April 1939 she had stockpiled approximately 
a year of her "peacetime" needs. 

Germany was then importing about 11% of her annual calory 
requirements. It was possible she could overrun other sources of 
supply, as in fact she did. This would reduce the additional imports 
of food required to sustain the country on a war level. 

During the early months of World War II, adjacent neutrals, 
even major food producers, such as Holland, Denmark and Belgium, 
were importing food much in excess of their probable consumption. 
While contraband controls upon food and other supplies were 
enforced by the Allies, the problem was also attacked by War 
Trade Agreements with the Northern Neutrals, Belgium, Holland 
and Switzerland. These countries could be persuaded to control 
their exports to Germany to some extent in return for British and 



* 17 Salter, Allied Shipping Control, 102 (1921) 



379 

French liberalization of contraband controls and their export con- 
trol policies. These agreements were compromises and the flow of 
foodstuffs and other commodities to the enemy did not stop. 

After the fall of France, and elimination of many of the neutrals, 
agitation increased for liberalization of the contraband policy to 
permit food and clothing to reach these "captured" populations. 
President Hoover has stated the cause for relief of the victims of 
Nazi aggression quite ably. 118 The reasons for opposition to relief 
of those engaged in economic warfare have been expressed with equal 
force. 119 

A Commission for Polish Relief had been organized in the United 
States in September 1939 and permits were obtained from the 
Chamberlain government for relief shipments of food. Relief was also 
sent to Finland during the Russo-Finnish War. But when Churchill 
became Prime Minister, exceptions for food shipments ceased. 

In November 1940, the National Committee on Food for the Small 
Democracies was created with Hoover as Honorary Chairman. 
Around this Committee developed much of the pressure for relaxa- 
tion of contraband regulations to permit aid to the occupied coun- 
tries and also to unoccupied Vichy France. 

This pressure, although ineffectual in achieving its aim, embar- 
rassed British blockading efforts at a critical war period. The 
Ministry of Economic Warfare was placed on the defensive. 

The British position was that of the "man under the gun" who 
resists any aid to his immediate adversary — direct or indirect. The 
position of American relief agencies stemmed from genuine human- 
itarian impulse, although there were no doubt some minor political 
ramifications and perhaps an element of profit motive as Professor 
Medlicott discreetly suggests. 120 

The important point which the British difficulty demonstrated is 
that the state interdicting food as contraband must anticipate 
emotional reactions among neutrals. These reactions can jeopardize 
the belligerent's entire system of contraband control. This hazard 
should be balanced against the advantages to the belligerent derived 
from interdicting food. 

That food currently can be declared contraband of war is no 



118 IV Hoover, An American Epic (The Guns Cease Killing and the Saving of 
Life From Famine Begins, 1939-1963), passim (1964). 

119 See Gordon and Dangerfield, The Hidden Weapon, 132-137 ; I Medlicott, 
The Economic Blockade, 549-584 (1952) ; II Medlicott, The Economic Blockade, 
612-619 (1959). 

120 I Medlicott, The Economic Blockade, 553, 554, 555 (1952). 



380 

longer seriously contested. 121 So far as its interdiction is concerned, 
whether food is conditional or absolute contraband today makes no 
practical difference. Prize courts have regularly condemned food 
supplies even though listed as conditional contraband in view of 
the requisitioning and other control practices of combatant govern- 
ments. 122 

It is speculative whether Article 23 of the Geneva Convention 
Relative to the Protection of Civilian Persons in Time of War 123 
will affect significantly belligerent contraband food operations. 
Contracting parties are to allow free passage of all essential food- 
stuffs, clothing and tonics intended for children under fifteen, ex- 
pectant mothers and maternity cases. 

This obligation, however, is conditioned, fatally it appears, upon 
satisfaction of the party there is no serious ground for fearing: (a) 
the consignments may be diverted from their destination; or (b) 
the control may not be effective; or (c) a definite advantage may 
accrue to the military efforts or economy of the enemy through the 
substitution of the consignments for goods which would otherwise 
be provided or produced by the enemy or through the release of 
such material, services or facilities as would otherwise be required for 
the production of such goods. 

Furthermore, the Power allowing passage may make distribution 
conditional upon supervision of the Protecting Power. It can also 
prescribe the technical arrangements under which such passage is 
allowed. 

Medical and Hospital Supplies 

Apart from Article 29 of the Declaration of London, 1909, and 
Article 23 of the Geneva Convention Relative to the Protection of 
Civilian Persons in Time of War, 124 there is little guidance concern- 
ing the status of medical and hospital supplies as contraband. These 
have not appeared on absolute or conditional contraband lists and 
a practice is believed to exist to exclude them on humanitarian 
grounds. 

Article 29 of the Declaration of London permitted, if the military 



121 Oppenheim states it is generally agreed that foodstuffs should not under 
ordinary circumstances be declared contraband. He does not state what extra- 
ordinary circumstances are unless he has in mind food destined for the use of 
the enemy army or navy. II Oppenheim, International Law, 805 (7th Ed. 
Lauterpacht, 1952). See III Hyde, International Law, 2108-2123 (1947). 

122 E.g., The Sidi Ifni, /1945/ Ll.P.C. (2d) 200, Ann. Dig. (1944-45), 549, 
Case No. 197. 

123 6 U.S.T. 3516; TIAS 3365. See Naval War College, International Law 
Documents, 1950-51, 175. 

124 Ibid. 



381 

situation was urgent, requisition of these supplies if destined to 
territory belonging to or occupied by the enemy or to the armed 
forces of the enemy. This is currently the international custom. 

Provisions of the Geneva Convention for the Amelioration of the 
Condition of Wounded, Sick and Shipwrecked Members of the 
Armed Forces at Sea, 1949, applicable to hospital ships, in relation 
to blockades as previously discussed, should also apply to the en- 
forcement of contraband regulations. 125 Individual shipments of 
medical supplies to prisoners of war probably should be passed with- 
out seizure. 126 

Article 23 of the Geneva Convention Eelative to the Protection of 
Civilian Persons provides for the free passage of medical and hos- 
pital stores intended for the civilians of another high contracting 
party, including civilians of the adversary. But this passage is sub- 
jected to the identical conditions imposed upon the passage of 
essential foodstuffs. 

The Need for a Contraband List 

The trend to shorten contraband lists in World War II, stating 
general contraband categories rather than attempting encyclopedic 
listings of specific items, worked adequately when coupled with an 
efficient navicert system. The items considered contraband by the 
belligerents seldom were placed in transit because no carrier could 
be obtained for unnavicerted cargo. 

The major function performed by the short list was guidance 
to administrators issuing navicerts. The function of notice to shippers 
who might unsuspectingly send their property to sea, and there 
have it seized, was of secondary importance. 

It was, of course, important to shippers to know that a program 
of contraband control was in force. If a shipper applied for a 
navicert and could not obtain it, he was on notice that his shipment 
at least was suspect, although as noted previously, absence of a 
navicert was never the sole ground of condemnation in a prize case. 127 



125 See Fn. 56, supra; Naval War College, International Law Documents, 
1950-51, 109. 

126 Geneva Convention Relative to the Treatment of Prisoners of War, 1949, 
Art. 72. (The provision is directed specifically to the Detaining Power but 
might be applied to a third power enforcing contraband regulations against 
the Detaining Power.) See Naval War College, International Law Documents, 
1950-51, 140. 

127 See Fn. 100, supra. In The Mount Taurus, Ann. Dig. (1946), 427, Case 
No. 183, the French Conseil des Prises indicated previous British denials of 
navicerts to companies did not make all cargo shipped by those companies 
suspect. (See In the Matter of Ten Registered Letters ex Eastbound Aircraft, 



382 

Sir Daniel Somervell, Attorney General, is said to have suggested 
during his argument in The Jurko Topic 128 that it was unnecessary 
as a matter of law to publish contraband lists. He was taken to 
task for this by Mr. Rowson because the consequences of carriage 
of contraband might differ depending upon knowledge by the shipper 
of the proclamation of contraband and the contents of the proclama- 
tion. 129 

During the American Civil War, the Union had no general contra- 
band list other than the list issued by the Secretary of the Treasury 
to the Collectors of Customs and by the Secretary of State to Con- 
sular Representatives covering trade with southern ports (Beau- 
fort, Port Royal and New Orleans) permitted by Proclamation 
in 1862. 13 ° All trade was to be interdicted with other southern ports 
by the blockade, although contraband controls were applied to 
shipments through Mexico. 

A proclamation that contraband goods will be interdicted seems 
necessary, just as there must be notice of a blockade. Whether a 
statement of the goods to be interdicted also is required should 
depend upon several factors. If the goods interdicted are to be those 
traditionally treated as absolute contraband, i.e., goods suitable only 
for war use, there seems no purpose today in setting forth a list 
other than to coordinate the activities of administrative and naval 
personnel enforcing contraband regulations. 

The more general the conflict, the greater the need there would 
seem for a list because of the increasing range of contraband con- 
trol activity. If navicerting is used generally, this should reduce 
the need for a contraband list published generally for the benefit 
of neutrals, although guidelines must be established for the admin- 
istrative officers issuing navicerts. 

Suggested Solution: Special Situation 7 B 

The Advisory Defense Committee should prepare a contraband 
list both for guidance of nonparticipants in the enforcement action 
and for guidance of the nationally diverse American naval units 
which will participate in enforcing the contraband regulations. No 
navicerting scheme seems justified unless the action promises to be 

Ann. Dig. (1949), 583, 585 (Bermuda, Supreme Court in Prize) where the 
court discussed notice implied from the mere setting up of censorship of 
postal correspondence. ) 

i 2 V1941/ Ll.P.C. (2d) 89, Ann. Dig. (1941-42), 631, Case No. 178. 

129 Rowson, "Prize Law During the Second World War," 24 Brit. Y.B. Int. L., 
160, 188, Fn. 9 (1947). 

i30 See Savage, Policy of the United States Towards Maritime Commerce in 
War 1776-1914, 446-449 (1934). 



383 

of extended duration. Thus, a list seems vital for the guidance of 
shippers and to reduce the burden upon intercepting naval units. 

The items listed as contraband should be limited to those: (1) 
immediately enhancing Nuevan and Antiokan military power; and 
(2) reasonably discoverable by a search at sea. Diversions of vessels 
for close examination should be minimized. 

The industrial resources of Nueva and Antioka seem sparse. The 
emphasis in contraband control should thus be upon manufactured 
items such as weapons, uniforms, ammunition, communication equip- 
ment, and transportation which cannot be produced locally. In view 
of the past history of conflict between the United States and Nueva, 
biological and chemical munitions and means for their delivery 
should be listed. 

The suggestion of the Antiokan Minister of Defense-in-Exile to 
include food, medical and hospital supplies on the contraband list 
should be rejected. The list should be coordinated with the restric- 
tions of the blockade which now excludes these items from coverage. 

Placing food on the contraband list risks mobilizing opinion 
against the Organization of American States. This might embarrass 
further action by the Organization as well as any similar action 
the Security Council might decide to take. 

Denials of food will also injure the innocent populations of Nueva 
and Antioka against whom the action of the Organization is not 
aimed. These people, now possibly uncommitted, may be prejudiced 
in favor of the Salvaje regime by unduly harsh economic measures. 
If denials of food later become necessary, both the contraband 
program and